Auld Reekie
Way back in March we sent the following letter to the Independent Advisers of the Scottish Ministerial Code regarding statements made in Parliament by several Scottish Ministers, including the First Minister. We felt the Ministers’ claims about accepting and implementing the Supreme Court judgment were misleading and contradicted their refusal to remove males from the female prison estate. These claims continued even after published Court submissions revealed that Ministers were directly challenging the Supreme Court decision by seeking a ruling that it was incompatible with the Human Rights Act. Their legal arguments were the precise opposite of “acceptance”.
Our letter followed earlier correspondence with the First Minister which failed to reach a resolution (see our blog: Letter to First Minister – Ministerial Code breach).
View letter as a PDF.
We were disappointed not to hear back from the Independent Advisers and reluctantly concluded that that was the end of the matter. However, almost six months later, we received a response. Not from the Independent Advisers, but from the First Minister. Nothing says “independent” and “impartial” quite like declining to address our complaint but instead passing it onto the person complained about so he can, once again, simply dismiss the complaint.
View letter as a PDF.
Nor does Mr Swinney’s letter make any sense. We were not asking the Independent Advisers to “comment on investigations or recommendations to third parties” – we have no idea what that’s referring to. We are fully aware the Advisers deal specifically with the Ministerial Code which is why we clearly requested impartial advice on matters “we consider to be a breach of the Ministerial Code on openness, honesty and accountability” and “whether the record should be corrected..if Ministers have knowingly and deliberately misled Parliament”.
But at this late stage the proof, as they say, is in the pudding. The judgment has been handed down in the judicial review on the transgender prison guidance and the Scottish Ministers lost. It was always unlawful – and in contravention of the Supreme Court ruling – to accommodate men in women’s prisons. Lady Ross could hardly be any clearer:
Sex segregation in prisons is very well-established and is consistent with international standards. The brightness of the statutory line underpinning sex segregation is set by rule 126, read with Schedule 22 to the EA 2010, and the protection given to separate and single sex spaces in the EA 2010, as explained by the Supreme Court in FWS 2. That decision also makes clear that the demarcation of separate sex spaces, including within prisons, is based on biological sex. [137]
Sex segregation in prisons in Scotland is lawful. The statutory scheme, based on the EA 2010 and the 2011 Rules, requires separate prison accommodation for men and women. Following FWS 2, this means sex segregation in prisons according to biological sex. [178]
We think this vindicates our complaint. It is just not feasible for three Cabinet Secretaries, the Equalities Minister and the First Minister to say they accept the Supreme Court decision and are implementing it, whilst the Government simultaneously acts in flagrant breach of it, and continued to do so throughout the fourteen months between the Supreme Court ruling and Lady Ross’s ruling.
We could reply to Mr Swinney and the Independent Advisers and point out this obvious fact but, quite frankly, what’s the point? The whole situation is ridiculous. If the First Minister misleads Parliament the only recourse seems to be to ask him to investigate himself. Unsurprisingly, this achieves nothing and only wastes everyone’s time and effort. Perhaps we should be grateful that there exists, in theory, a process of independent investigation (which was set up by Alex Salmond) but, again to no-one’s surprise, this turned out to be a farcical deference to the First Minister, who in any case holds the power on the final decision. It’s just another piece of evidence that leads to the increasingly held view that the SNP Government is corrupt. It stinks.