Correspondence on the conduct of the deputy convener of the Equalities, Human Rights, and Civil Justice Committee of the Scottish Parliament
I yesterday wrote to my constituency MSP regarding the recent actions of Maggie Chapman MSP, deputy convener of the Equalities, Human Rights, and CIvil Justice Committee of the Scottish Parliament. Given the important contribution today from the Faculty of Advocates condemning Ms Chapman’s attack on the Supreme Court and suggesting her comments are incompatible with her role and with committee membership (a position I, as an academic lawyer in scotland who is not an advocate would endorse) I thought it was worth sharing the correspondence I sent to my MSP which made similar points but not as powerfully expressed.
As you are aware the Supreme Court of the United Kingdom last Wednesday decided the case of For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16. This case was on the interaction of the Gender Recognition Act 2004 and the Equality Act 2010. While section 9 (1) of the 2004 Act provides that where a person born in one sex had a gender recognition certificate in accordance with the requirements of the 2004 Act that gender recognition certificate provided that for legal purposes the person was treated as being the gender stated in the certificate rather than natal sex — subject to the qualification in section 9 (3) of the 2004 Act that any enactment could provide otherwise. The Supreme Court unanimously held that the Equality Act 2010 was an enactment covered by section 9 (3) of the 2004 Act meaning that the approach in section 9 (1) did not apply within that Act. Instead, the Supreme Court held — applying basic principles of statutory interpretation about consistency and coherence of legislative language — that for the purposes of the Equality Act 2010 sex (and man and woman) was given a meaning in accordance with biological sex. In carefully reasoned argument noting the ways in which the terms of section 9 (1) if applied to the Equality Act 2010 would make some provisions of the Equality Act 2010 absurd or impossible to operate, while creating lacunae in the effect of the legislation, the Court noted that it was engaging in an act of statutory interpretation. And in paras 248 ff the Supreme Court was careful to set out the protections against discrimination that were held by trans individuals who in their lived gender benefit from the protected characteristic of gender reassignment and certain provisions relating to direct or indirect discrimination against sex where the individual is discriminated against because they are perceived to be a sex other than their biological sex or because of association.
I appreciate the judgment has been controversial with some, although the controversy seems related to a misunderstanding as to the effect of the decision, or based on an assumption that sex in the Equality Act was based on self identification, a position asserted by various lobby groups who provided training to organisations in the private and public sector, but a position authoritatively rejected by the Court of Session some time ago.
As a legal academic I think it is important for us to accept that judgments can be legitimately subjected to criticism. However, such criticism requires to be made within the appropriate parameters of discourse (for example, noting legal arguments that were not made, or questioning particular conclusions or arguments made within the reasoning of a decision). In addition any legitimate criticism should be made while respecting the independence of the judiciary and the importance of upholding the rule of law.
I was astonished though to see at the weekend that the deputy convener of the Scottish Parliament committee on Equalities, Human Rights, and Civil Justice — which in its remit has responsibility for “matters relating to civil justice within the responsibility of the Cabinet Secretary for Justice and Home Affairs” (https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-equalities-human-rights-and-civil-justice-committee ) thereby including “courts” and the “justice system” (https://www.gov.scot/about/who-runs-government/cabinet-and-ministers/cabinet-secretary-for-justice-and-home-affairs/#:~:text=The%20Cabinet%20Secretary%20is%20responsible,criminal%20justice%20social%20work ) — said the following:
“We say not in our name to the bigotry, prejudice and hatred coming from the Supreme Court”
Ms Chapman’s comments are suggesting that the decision of the Supreme Court is one of bigotry, prejudice and hatred — an assertion made without any argument or attempt at justification. This is an unfounded and unwarranted attack on an institution that in her role as deputy convener of the committee with responsibility for civil justice Ms Chapman has a crucial role in oversight of.
All Members of the Scottish Parliament are under a statutory obligation to uphold the independence of the judiciary. Section 1 (1)(d) and (e) of the Judiciary and Courts (Scotland) Act 2008 (accessible here https://www.legislation.gov.uk/asp/2008/6/section/1 ) provides that
“The following persons must uphold the continued independence of the judiciary —
…
(d) members of the Scottish parliament, and
(e) all other persons with responsibility for matters relating to —
(i) the judiciary, or
(ii) the administration of justice,
where that responsibility is to be discharged only in or as regards Scotland.”
The Supreme Court, in its role as a Scottish court, is covered by section 1 (3)(a) of the 2008 Act.
Ms Chapman has a dual role here. First, as a Member of the Scottish Parliament she seems to fall within section 1 (1)(d) but also in her role on the committee on civil justice, not just as a member but as the deputy convener, she seems to fall within section 1 (1)(e).
I have checked the code of conduct for members and am surprised to see that this statutory duty on Members of the Scottish Parliament is not protected within the code of conduct. I wonder then what, if any action, can be taken against a member within the Scottish Parliament when section 1 of the 2008 Act appears so flagrantly to be breached.
I am also concerned to note that the committee of which Ms Chapman is deputy convener has asked for evidence on the decision in the For women Scotland Ltd case, albeit a limited short notice call for evidence from various organisations and not for example, from legal academics, other organisations, or others with an interest (and relevant observations on the case). Given Ms Chapman’s comments I am not sure first, how credible the committee can be in any review of the case when the deputy convener has already stated that the decision came from a place of bigotry, hatred and prejudice (thereby undermining the institution of the Scottish Parliament); and second, how credible the committee can be in any review of matters where the civil court system is at issue when the deputy convener has such blatant disregard for judicial independence and the rule of law.
I wonder if you would be able to raise this issue with the appropriate authorities within the parliament as I am concerned for the reputation of the parliament if no action is seen to be taken.
Best wishes
