Category Archives: Constitutional Law

12.11.15
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Statutory Judicial Directions in Sexual Offences Cases

In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary.  This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy.  It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.

Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy.  It is important that the judiciary is totally independent from the Executive and the legislature.  Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland.  Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).

This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary.  Parliament serves two primary functions: to make laws and to hold the Executive to account.  The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account.  Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong.  It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example.  These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.

The impartiality is also of huge importance and two-fold.  Firstly, the judiciary must be politically impartial.  It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to.  They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party.  Their impartiality also extends to the parties before them.  They must be careful not to be seen to be supporting one side or the other in any way.  That is not an easy task.

There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary.  Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases.  Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence.  However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned.  In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.

Independence

These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases.  This is something that clearly crosses the line in the separation between Parliament and the Judiciary.  This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions.  It is Parliament expressly dictating to judges how they should do their job.  We should always prevent Parliament from taking such steps.

Impartiality

The Directions which Parliament proposes judges should make in their charges are well founded in evidence.  However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer).  It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice.  When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused.  In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.

One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them.  Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence.  It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury.  In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).

How else can this issue be addressed?

As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence.  A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation.  It should not be relevant whether or not a complainer made attempts to fight the alleged offender off.  These are the issues that these proposed jury directions seek to address.

In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury.  The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case.  Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist.   It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.

Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge.  It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed.  Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.

It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.

06.21.15
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A problem with the Scottish EIRs

The Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”) give individuals the right to request and obtain, subject to certain well defined exceptions, information in relation to the environment from Scottish public authorities.  They implement into the law of Scotland Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information (“the Directive”).  The Directive in turn implements the Convention on Access to Information, public participation in decision-making and access to justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”) into EU law.

In Scotland, like the rest of the UK, the Scottish EIRs are an adjunct to Freedom of Information.  The Scottish EIRs sit alongside the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Scottish Information Commissioner has the same powers of enforcement in respect of the Scottish EIRs as she does in respect of FOISA.  By virtue of Regulation 17 of the Scottish EIRs, Part 4 of FOISA applies to the Scottish EIRs.  The Regulations make certain amendments to Part 4 of FOISA for when it is being read in respect of the Scottish EIRs.

Section 48 of FOISA provides that no application can be made to the Scottish Information Commissioner in respect of three scottish public authorities: (1) the Commissioner herself; (2) a Procurator Fiscal; and (3) the Lord Advocate, where the information relates to his role as head of the systems of prosecution and the investigation of deaths in Scotland.  Essentially, this means that the Scottish Information Commissioner is prohibited from accepting any application for a decision by anyone that relates to the handling of a request for information under FOISA and the Scottish EIRs made to the Commissioner’s Office and the Crown Office and Procurator Fiscal Service (“the COPFS”).  I’m not a fan of this section and think it ought to be repealed in its entirety, but that is a subject for another time.  As far as the Scottish EIRs are concerned this section is a problem.  Essentially, once the Commissioner’s Office and the COPFS have conducted an internal review there is nowhere else for the requester to go if they remain dissatisfied with the response.

Article 6(2) of the Directive provides that:

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

The review procedure under paragraph 1 is essentially the internal review procedure provided for by Regulation 16 of the Scottish EIRs.  In respect of every other scottish public authority covered by the Scottish EIRs there exists a right to make an application to the Scottish Information Commissioner and have a decision notice issued by her office together with the ability to appeal (on a point of law only) that decision notice to the Inner House of the Court of Session, and then on to the Supreme Court of the United Kingdom.  There is a decision of a third party that is capable of becoming final.  Therefore, Article 6(2) of the Directive is complied with.  However, these appeal rights do not apply in respect of requests made to the Commissioner’s Office and the COPFS.

It should be theoretically possible to judicially review the internal review response of both the Commissioner and the COPFS.  At a first glance that might be thought to satisfy the requirements of Article 6(2) of the Directive; however, the wording of the Directive suggests that Judicial Review may not be sufficient.  Judicial Review is not an appellate procedure; it is a review procedure.  The Court of Session cannot substitute its own decision for that taken by the public authority.  The Court of Session could, in a judicial review, determine that irrelevant factors had been taking into consideration in respect of assessing the public interest where a qualified exception has been applied; it could not determine that the public interest does or does not support the maintaining of an exception.   Essentially, all the Court can do is uphold the decision of the Commissioner’s Office or the COPFS, or it can quash the decision – it cannot re-take the decision (something that the Commissioner effectively has the power to do when considering an application under section 47(1) of FOISA).  Therefore, judicial review cannot be a “review procedure… in which the acts or omissions of the public authority concerned can be reviewed” because it can only do so to a limited extent.  Therefore, for all practical purposes the decision of the public authority is final, not the decision of a court or another independent and impartial body established by law.

Furthermore, judicial review is expensive and comes with considerable risk in relation to expenses.  While it is theoretically possible for an applicant to represent themselves in the Court of Session, in all likelihood it will necessitate the instruction of a solicitor and at least junior counsel (if not junior and senior counsel); that is expensive.  Even if an applicant manages to represent themselves in the Court of Session; the court fees will be prohibitively expensive to many people.  These fees, payable at various stages throughout the process, will total hundreds of pounds.  The public authority in question will be represented by Counsel and if a requester loses, they may find themselves responsible for paying the public authority’s expenses (although, the Court does retain an inherent discretion in whether to make an award of expenses and to what extent the losing party shall pay the winner’s expenses).  This is relevant because the Aarhus Convention, upon which both the Directive and the Scottish EIRs are based, requires the review processes to be free of charge or inexpensive or not prohibitively expensive (Article 9).  The Court of Justice of the European Union found that the UK had failed to properly implement the Directive when looking at the costs under the English judicial system (see European Commission v United Kingdom).

The problem for the Scottish EIRs gets bigger once consideration is given to the Scotland Act 1998.  Section 57(2) of the Scotland Act provides that the Scottish Ministers have “no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.”  The Scottish EIRs are regulations and are therefore subordinate legislation.  By applying section 48 of FOISA to the Scottish EIRs the Scottish Ministers have made subordinate legislation that is ultra vires – it is outside of their competence.  For the Scottish EIRs to be compatible with EU law, section 48 of FOISA cannot apply to them; while it does, the Scottish EIRs do not fully implement Article 6 of the Directive.

This problem is easily resolved.  The Scottish Ministers simply need to amend the Scottish EIRs so as to disapply section 48 of FOISA in respect of the Scottish EIRs.  This would enable the Commissioner to consider applications made to her under section 47(1) of FOISA concerning requests for information made to either her office, or the COPFS that engage the Scottish EIRs.  Of course, the Scottish Ministers could introduce legislation into the Scottish Parliament to repeal section 48 of FOISA altogether (and that would kill two birds with one stone).

If the Scottish Ministers do not choose to make the relevant amendments they could be forced to.  All it would take is for someone to go through the process of making a request for environmental information to either the Commissioner or the COPFS, getting a refusal notice which is then upheld at internal review, and making an application to the Scottish Information Commissioner so as to get a notice from the Commissioner stating that no decision falls to be made.  This can then be appealed to the Court of Session for them to make what appears to be an inevitable decision: the Scottish Ministers acted ultra vires when applying section 48 of FOISA to the Scottish EIRs – an expensive process, but one that someone will eventually go down some day.

03.29.15
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The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons.  It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it.  While this might seem, on the face of it, really good for transparency; it comes with a serious warning.  In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case.  The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK.  While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy.  It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed.  For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed.  I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament.  It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct.  The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court.  It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein.  Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it.  Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland?  The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts.  Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts).  As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration.  The wording in section 52 is almost identical to that in section 53.  The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate.  So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament.  The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers.  Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998.  There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression).  If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence.  It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs.  However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law.  The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law.  I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs.  In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed.  The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation.  The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption.  However, that does not affect the position under the EIRs.  The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld.  What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one.  It had been proposed by the Scottish Government, but was dropped.  Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

07.01.13
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A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

04.23.13
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Abu Qatada and the Rule of Law

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again.  As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country).  Let me be clear, I am no fan of Abu Qatada.  He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes.  However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings.  However, I would suggest that this is the wrong place to direct criticism towards.  The law is clear and it is for the judges to apply the law and to uphold the law.  Judges are not there to make or to change the law; that power lies with the Government and Parliament.  If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government.  In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law.  They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party.  They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not.  The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts.  They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society.  They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law.  It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision.  In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make.  The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law.  If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account.  There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye).  When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy.  If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won.  Is that what you really want?

02.23.12
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I’m sorry, we can’t confirm or deny that (Part 2)

In November I wrote a short blog post about an application to the Scottish Information Commissioner that had caught my eye.  As far as I can determine that application is still being considered by the Office of the Scottish Information Commissioner.

My curiosity got the better of me and I wrote to the Scottish Government requesting the content of: (a) the initial request (b) the Scottish Government’s substantive response (c) the applicant’s request for a review and (d) the content of the Government’s response to that request for review.

What has come back is quite astonishing really.  The paper that the initial request was made on is that of what appears to be the office of a Scottish Labour Member of the European Parliament.  The request asks simply whether the advice was given to the Scottish Government and, if so, is the advice publically available.  No mention of FOISA in the request and does seem to me to be part of the normal communications between elected representatives and the Scottish Government, but such is life.

The Scottish Government then wrote back in August (the request having been received by them in  early June) refusing to confirm or deny whether the information exists in accordance with Section 18(1) of FOISA.  So, if the Government had considered this a request for information, which they did, there was already a significant technical breach as they had failed to comply with Section 10(1) of FOISA.  The Scottish Government used Section 18(1) on the grounds that to confirm or deny that the information exists would be contrary to the public interest and if it did exist, or was held, then it would be exempt from disclosure under sections 29(1)(a) or 30(c) of FOISA.

Unsurprisingly the MEP in question wrote back to the Scottish Government asking them to review this decision.  The MEP referred to the decision not to confirm or deny in their request for review as “perverse” in the “determination of where the public interest lies”.  A conclusion that I happen to agree with based on the correspondence I have seen.

The Scottish Government responded to the MEP in question upholding their original decision, but appear not to have even considered whether the decision to apply Section 18(1) was correct.  In any event, as we know, this has triggered an application to the Scottish Information Commissioner.

Having viewed the correspondence between the MEP and the Scottish Government I find it odd that the Scottish Government would find that it would not be in the public interest to even confirm or deny whether legal advice on the position of an independent Scotland in the EU.  I can understand why they would withhold the information if it did exist, but to not even confirm that it exists o not is perplexing in the extreme.

The First Minister and his colleagues on the SNP benches appear to have been quite vocal about the position of an independent Scotland in the EU.  I seem to recall that some have even said they have received legal advice on that very topic.  Now, that advice might have been sought by and paid for by the SNP as a political party and not the Scottish Government.  That would obviously result in the information not being held by the Scottish Government.  Although, that still doesn’t explain the use of Section 18(1) of FOISA.  There are conflicting messages coming from the Scottish Government and as we are heading towards the most significant decision we have ever had to take we cannot have politicians acting in this way.

I do not have the name of the MEP that made the request.  That is because having assumed that it was made by a member of the public excluded information as to the identity of the applicant from the scope of the request.  I had not for a moment considered that it might have been an elected representative who had made the request.

Obviously the Commissioner’s office is yet to determine this application, but I cannot see how the use of Section 18(1) can be upheld here.   It all seems just a little bit odd.  I’m sure we now all await this decision from OSIC with great interest.

01.13.12
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A referendum on Scottish Independence: Would it be legal?

One Scottish issue has had a lot of debate, discussion and broadcast time spent on it this week.  The subject even managed to dominate Thursday’s edition of Question Time which came from London and made an appearance in Prime Minister’s Questions in the House of Commons on Wednesday afternoon.  That’s right; I make reference to the issue of Scottish Independence.

In May 2011 the SNP won a historic victory in the Scottish Parliament.  Of course it would be foolish to suggest that this was down to their lifelong policy of achieving independence for Scotland(though that doesn’t stop some members of the SNP claiming so).  Undoubtedly though this gives the SNP a mandate to hold a referendum on the question of whether Scotland becomes independent or not.

While it is clear that the Scottish Government have a mandate for a referendum, it is less clear whether they are actually able to hold it.  Questions arise over the legislative competence of the Scottish Parliament in passing legislation to hold the referendum.  A referendum on Scottish Independence cannot be held without first having passed primary legislation.  Those outside of the legal world could be forgiven for thinking what the problem is, after all the SNP won a majority and therefore the people of Scotland have confidence in them and in their manifesto and would undoubtedly expect the SNP to do what it promised in its manifesto.  However, the problem is not a simple one.

The Scottish Parliament is not supreme in the same way that the UK Parliament is in Westminster.  Its powers are set out within the Act of Parliament that brought it into being: The Scotland Act 1998. That Act in effect gives Holyrood the permission to pass legislation on any matter that is not reserved to Westminster.  Essentially, any area that’s not specifically mentioned within the Scotland Act 1998 as being reserved is fair game for the Scottish Parliament to legislate.  A political party could make all the promises it wanted in the world during an election campaign, but if the Scottish Parliament doesn’t have the legal power to legislate then quite simply it cannot legislate.

Those who sit within the Scottish Parliament have free will and could quite clearly pass legislation on a reserved matter.  However, that legislation would be unenforceable.  The Scotland Act 1998 states quite clearly that any “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”  (Section 29(1)).  There is a process whereby an Act of the Scottish Parliament can be challenged, first in the Court of Session and laterally before the Supreme Court of the United Kingdom, if it is believed that it is outside of the legislative competence of the Parliament.  If the Courts so find then the legislation is declared to be ultra vires and is struck down; in essence it has no legal effect whatsoever.

What does all of this have to do with a referendum on Scottish Independence?  Schedule 5 of the Scotland Act 1998 provides a list of “reserved matters”.  The second matter on the list of those that are reserved to Westminster is “the Union of the Kingdoms of Scotland and England”.  A referendum on Scottish independence relates to the Union of the Kingdoms of Scotland and England.  The purpose of the referendum is to see if the Scottish people wish to bring an end to that 304 year old union.  The SNP are obviously in favour of bringing an end to that union and would hope that the result of any referendum on Scottish Independence would eventually bring the union to an end.

It would appear that to hold such a referendum is currently out with the legislative competency of the Scottish Parliament.  There are persuasive arguments for the position that it is not out with the legislative competency of the Scottish Parliament.  However, my own personal view is that any legal challenge to the referendum legislation under the current law would more likely than not be held to be ultra vires.

Whatever your view on the legislative competence of the Scottish Parliament on holding this referendum under the current law, it would be foolish to think that there would be no challenge to the legislation.  Any challenge to the legislation could delay the holding of the referendum by a number of years.  It could take as many as two or three years before a determination from the Supreme Court as to whether the legislation is within the legislative competence of the Scottish Parliament or not.

If we assume that the legislation would be challenged and it were then found to be within the legislative competence of the Scottish Parliament and follow the SNPs preferred timetable for passing the legislation it could be as late as 2016 or 2017 before the referendum could be held.  If it were to be held in 2016 it could get mixed up with the planned elections to the Scottish Parliament in May of that year.  The delay would only lead to more uncertainty and could be very damaging for Scotland and the UK in economic terms.  Business does not tend to like this level of uncertainty in politics and it might well put off foreign investors from bringing much needed investment into Scotland and the UK.

There is, I submit, no harm whatsoever in Westminster passing primary or secondary legislation clarifying the position and eliminating any potential challenge to the resulting legislation.  One would expect the SNP to welcome such clarification as it means they can progress forward with the referendum with no doubt whatsoever that the referendum would be legal and won’t get tied up in a legal row over whether the Scottish Parliament had the power to pass it.

While it might be for the Scottish people to decide whether they wish to break away from the rest of the UK and become independent, Westminster has a place in the debate.  Scottish Independence won’t just affect the people of Scotland but will affect everyone in the United Kingdom.  Scottish MPs sit in Westminster and have just as much right to represent their constituents as the MSPs in Holyrood and those who represent English, Welsh and Northern Irish Constituents have the right (and indeed the responsibility) to play their part in the debate in order to represent the best interests of their constituents.

The legal question is by no means certain and people on both sides of the “is it legal?” divide undoubtedly have justification for their opinion.  It would, in my view, be better for all sides if this question was put to rest quickly, without years of expensive legal action in the Court of Session and Supreme Court, and the people of Scotland allowed to have their opinion known as soon as is reasonably practicable.

The UK Government have launched a consultation on some of the questions surrounding the legislative competence of the Scottish Parliament holding a referendum and what should be done to ensure that any referendum is legal, fair and decisive.  The consultation document can be found here.  Responses are invited from anyone, regardless of their place of residence, by Friday 9 March 2012.