#IndyRef2 and the Supreme Court

On 28 June 2022, the Lord Advocate lodged a reference with the UK Supreme Court under paragraph 34 of Schedule 6 to the Scotland Act 1998. The reference concerns whether the Scottish Parliament has legislative competence to legislate for a referendum, specifically in relation to a draft Bill. The question, set out at paragraph 21 of the Lord Advocate’s reference, the Supreme Court is invited to answer is:

“Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (para.1(b) of Schedule 5); and/or (ii) the Parliament of the United Kingdom (para.1(c) of Schedule 5)?”

The UK Government is reportedly asking the Supreme Court to dismiss the reference. Firstly, on the substantive question, that the Scotland Act does not confer legislative competence on the Scottish Parliament to legislate for a referendum on independence. Secondly, on a more technical basis, that the reference is premature on the basis that the Scotland Act 1998 makes express provision for scrutiny of Bills by the Supreme Court, which begins after the Bill has completed its passage through the Scottish Parliament. The UK Government’s position is not unexpected, and they are doing nothing improper in seeking to argue that paragraph 34 of Schedule 6 does not confer jurisdiction on the Supreme Court to determine the legislative competence of a proposed Bill.

Those who have been following the legal wranglings over the Scottish Parliament’s competence in this area will be familiar with the case brought by Martin Keatings, in which the Lord Advocate’s predecessor and the Advocate General for Scotland were at one in arguing that Mr Keatings’ case was premature. Both succeeded in the Outer House (before Lady Carmichael) and in the Inner House (before the First Division comprising the Lord President, Lord Menzies and Lord Doherty).

Schedule 6 to the Scotland Act 1998 is concerned with what are known as “Devolution Issues” and consists of 38 paragraphs divided into 5 parts. For present purposes, only paragraphs 1 and 34 are of relevance.

Paragraph 1 defines what constitutes a “devolution issue” for the purposes of the whole schedule. The Lord Advocate relies on paragraph 1(f), which states “any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.”

Paragraph 34 provides that “[t]he Lord Advocate, the Attorney General, the Advocate General or the Advocate General for Northern Ireland may refer to the Supreme Court any devolution issue which is not the subject of proceedings.” Schedule 6 is mostly concerned with devolution issues which arise in the context of ongoing cases before the courts in Scotland, England and Wales and Northern Ireland; however, this one paragraph provides a power for one or more Law Officers to refer directly to the Supreme Court any devolution issue which is not the subject of ongoing litigation in the courts.

When the reference was first announced, a number of commentators queried whether paragraph 34 covers the question raised by the Lord Advocate in her reference.

Paragraph 1(f) is drawn in apparently wide terms; however, it must be read in context. It forms part of a list of other things which are devolution issues, this includes “a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament.” Importantly, that list of things only refers to Acts and makes no reference to Bills. The Scotland Act 1998 provides elsewhere for the scrutiny of Bills for legislative competence by the Supreme Court. Those provisions are to be found in section 33, which provides that the Lord Advocate, Advocate General and Attorney General for England and Wales may refer a Bill, or any part of a Bill, to the UK Supreme Court in the 4-week period following it being passed by the Scottish Parliament. This has been done three times before in relation to Bills passed by the Scottish Parliament: the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill; the European Charter of Local Self-Government (Incorporation) (Scotland) Bill and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. In all three cases those references were made by the UK Law officers (the Advocate General and Attorney General).

The Inner House in Keatings concluded that Section 33 was the only way in which Bills could be scrutinised before becoming an Act of the Scottish Parliament. In his opinion, the Lord President states the following, at paragraphs 60 and 61:

[60] It is important in limine to make a clear distinction between an Act of the Parliament and a Bill. Only a provision of an Act can be outwith legislative competence (1998 Act, s 29(1)). The contents of a Bill cannot be, since a Bill has no legislative force. The 1998 Act makes express provision for both the person in charge of a Bill and the Presiding Officer to express their views on legislative competence. The phraseology is careful and is designed to ensure that such an expression does not amount to a decision which is subject to the supervisory jurisdiction of the court. The Act goes on to provide expressly for the scrutiny of Bills at a stage after a Bill has been passed by the Parliament but prior to it receiving Royal Assent. It has confined that scrutiny to the Supreme Court of the United Kingdom and then only on the application, within a limited window of time, of the principal law officers of Scotland and the United Kingdom (1998 Act, s 33(1)). This is the only method of scrutinising a measure for legislative competency prior to Royal Assent.

[61] If it were otherwise, there would be the potential for conflict between applications which challenge competency made by other persons to the Court of Session or a sheriff court in advance of Royal Assent. Put another way, “the coexistence of two systems, overlapping but varying in matters of detail… would be a recipe for chaos” (R (Child Poverty Action Group), Lord Dyson at para 35 citing Unisys [2003] 1 AC 518 Lord Millett at para 80). The time frame for applications to the UK Supreme Court would be rendered somewhat redundant, if an application from one of the law officers could be made prior to the passing of the Bill by the Parliament. The idea that the law officers are able to seek such scrutiny only after the passing of a Bill would be rendered nugatory if they could do so during the Bill’s passage through Parliament.

It should be noted that the opinion was given without the court having been addressed on paragraph 34 of Schedule 6 or, seemingly, it ever having been brough to the attention of the Court. However, that aside, there appears to be a logic to the Court’s position (a position which was advanced by both the Advocate General and the Lord Advocate). Section 33 would more or less be redundant if the principal law officers could simply refer Bills at any stage.

The problem with a court giving a judgment on legislative competence before a Bill completes its passage through the Scottish Parliament is that a Bill can be amended in any number of ways at various points through that process. Those amendments could conceivably take a Bill, or part of a Bill, outwith competence that had, until the point it was amended, been within competence. You could also end up with a situation where, for example, the Advocate General for Scotland refers a Bill upon its introduction and while the Supreme Court is hearing that reference, the Scottish Parliament debates and amends the Bill (or debates the Bill and decides, at Stage 1, not to progress the Bill any further), which leaves the court assessing an outdated position and rendering its judgment academic. It therefore doesn’t address the core issue and wouldn’t prevent challenges under section 33 (prior to Royal Assent) or through judicial review(after Royal Assent) in respect of any changes made to the Bill.

The logic of the opinion of the First Division of the Inner House, appears to hold true when applied to paragraph 34 of Schedule 6. It is certainly arguable that paragraph 34 of Schedule 6, given its wide terms, confers a power on the Lord Advocate to make this reference, but for what it is worth, my view is that it is unlikely that the Supreme Court will accept that is the position. I suspect that the Supreme Court will approve of the essential conclusions reached by the Inner House in paragraphs 60 and 61 of Keatings and dismiss the reference, leaving open the option for the Advocate General, Attorney General or Lord Advocate to refer a Bill after it has been passed.

What that will mean for the proposed Bill will remain to be seen. It appears from the reference that other parts of the Lord President’s opinion in Keatings causes some issues for the Lord Advocate in being able to sign-off on the Bill being within competence. At paragraph 4 of the reference, the Lord Advocate refers to comments made by the Lord President at paragraph 66 of his opinion in Keatings. In particular, where the Lord President expresses the view that “it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day.” When read in context, it certainly appears that the Lord President is of the view that such a Bill would be outwith the competence of the Scottish Parliament; however, he stopped short of stating that and, in any event, as the decision in the case had been reached for other reasons any views expressed on the substantive merits is obiter (something expressed in a judgment that is not essential to the decision and therefore not binding as precedent).

When a Bill is introduced into the Scottish Parliament, section 31 of the Scotland Act 1998 requires the person in charge of the Bill (in the case of a Bill introduced by the Scottish Government, this would be one of the Scottish Ministers) and the Presiding Officer to decide whether or not in their view the provisions of the Bill would be within the legislative competence of the Scottish parliament and to state their view.

However, the Scottish Ministerial Code goes further; it requires that, before a Minister states that it is their view that the provisions would be within competence, they must get the statement cleared by the Law Officers (i.e. the Lord Advocate and/or the Solicitor General for Scotland). This raises another potential problem with the reference; it essentially flows from a condition imposed on the Scottish Ministers by the First Minister through the Scottish Ministerial Code rather than the Scotland Act 1998. It is, of course, a good idea for Scottish Ministers to get a view from the Law Officers on legislative competence, but in law, the burden rests on them. It would also be reckless for them to introduce a Bill against legal advice which expressed a clear view that the provisions, in the opinion of the Law Officers, would be outwith competence.

The Lord Advocate has not stated, at least publicly, that it is her view that the provisions are outwith legislative competence. Indeed, it must (in my view) be inferred from the reference that the Lord Advocate considers it at least statable that there is legislative competence. The Lord Advocate talks about lacking the “necessary degree of confidence”; nobody really knows what that is. It’s not set out in the Scotland Act or in the ministerial code and may well differ from Lord Advocate to Lord Advocate. Some might settle for a statable case, some might want there to be one with a real prospect of success (still a low hurdle, but higher than merely statable) while another might require something more certain than that.

Whether, in the event that the Supreme Court disagrees with the Lord Advocate’s view on the extent of paragraph 34 of Schedule 6, the Lord Advocate then decides to clear the statement and allow the Bill to be introduced (and no doubt passed) is, of course, a matter for her; as is whether she then refers any Bill passed under section 33. The Scottish Ministerial Code, like its counterpart, is not really law. It sets out how (in this instance) the First Minister expects Scottish Ministers and Junior Scottish Ministers to conduct their duties and the expected standard of conduct.

Lord Advocate’s apparent change of position

It will be clear to anyone who has been following this saga (and hopefully to anyone who has read what I have said up until this point) that the position adopted by the present Lord Advocate appears to be rather different in some respects to that of her predecessor.

It is, of course, not uncommon for two lawyers to take different views on what the correct answer is to a particular legal problem. At paragraph 13 the Lord Advocate deals, in some way, with Keatings by saying:

“The observations of the Lord President in Keatings should be read subject to para.34 and para 1(f) of Schedule 6 SA. In the context such a qualification was not suggested on behalf of the Lord Advocate in Keatings, and to that extent, the present Lord Advocate departs from that position. The Lord Advocate’s position on Keatings will be more fully explained in her Written Case for this Reference.”

We await to see the written case of the Lord Advocate to see how this position is developed. However, it would appear that a probable line of argument will be that there are material difference between the Lord Advocate’s position and that of Mr Keatings (assuming the interpretation of paragraph 34 of Schedule 6 put forward by the Lord Advocate is correct).

If the Lord Advocate’s position that she has a power under paragraph 34 of the Scotland Act 1998 to refer a proposed Bill to the Supreme Court is correct, it would place her in a very different position to that of Mr Keatings. While some of the same issues arise in relation to amendment etc, the Lord Advocate would be relying upon a statutory power conferred by Parliament rather than the common law. Therefore, the Supreme Court would, irrespective of any reservations it might have with giving such a judgment, be required to answer the substantive question posed by the Lord Advocate in the reference as that is what the UK Parliament had decided that it should do.

This is certainly an interesting reference and even if we do not get an answer to the substantive question at this time, it will likely result in the Supreme Court giving its judgment on the extent of paragraph 34 of Schedule 6. Hopefully the UK Government will publish its response to the reference and both parties will, in due course, publish their written cases. The case has already attracted a considerable degree of public comment, being able to see and understand the parties’ respective positions would be of great assistance.

A New Commissioner, a New Approach?

Earlier this month John Edwards, former Privacy Commissioner and Barrister in New Zealand, replaced Elizabeth Denham as Information Commissioner.  The job of Information Commissioner is a significant one with many challenges. He has began what he calls a “listening exercise”. I have completed the survey, which didn’t give much room for comment. I thought I would place a more detailed outline of my thoughts here; more as an exercise for expressing my own frustrations with the ICO and to perhaps give others some ideas about what they can include in their own response to the Commissioner’s survey.

Freedom of Information

Under this heading, for the sake of clarity, I’m not simply referring to the Freedom of Information Act 2000, but also to both the Environmental Information Regulations 2004 and the more obscure INSPIRE Regulations 2009 (which are concerned with spatial data).

FOI, especially the Freedom of Information Act 2000 and the Environmental Information Regulations 2004, is, as the Commissioner has himself acknowledged, critical to our democracy. They are a means for individuals to find out what is going on in areas that interest or directly affect them and to obtain information which they can use to help keep public bodies and officials accountable.

There are two main areas of concern, from my perspective, with the ICO in respect of FOI: (1) length of time taken to deal with regulatory complaints; (2) the apparent reluctance of previous commissioners to make full use of their enforcement powers in this area.

Turning first to the issue of delay; currently it is taking around 6 months for complaints, once received, to be allocated for investigation. That means that for up to six months the complaint is just sitting there, with absolutely nothing happening. The last decision notice I received from the Commissioner, was issued 11 months and 18 days after the complaint had been made to the ICO. This is unhelpful, and quite frankly, unacceptable. In many cases, these delays at the ICO are compounding already significant delays by some public bodies. There are some public authorities with well-known compliance issues in this area, where requests can take upwards of 6 months to be dealt with by the authority; meaning from request to ICO decision it can be upwards of 18 months.

FOI is a critical tool in helping individuals, community groups, journalists and others hold public bodies and officials to account. In a great many cases the value of the information sought diminishes over time; if information is being sought to help oppose, for example, changes to the provision of services in local communities, the delays at the ICO significantly hamper (and indeed damage) the usefulness of FOI in this area. If information is only, finally, being released several years after it was first requested it has almost certainly come far too late to be of any use to those requesting it.

The length of time that it takes for a FOI request to be dealt with is, in some respects, hampered by the legislation itself, with provisions for open-ended extensions for consideration of the public interest test and no statutory timescales (beyond the statutory Code of Practice) in relation to internal reviews. These have both been highlighted to Parliament on several occasions, but no legislative action has been forthcoming to deal with these issues. However, I will return to this in a moment.

What is completely within the control of the Commissioner is how long it takes his office to deal with matters once complaints have been made. A priority for the Commissioner should be looking to significantly reduce the backlog; and put in place systems that ensure complaints are being dealt with promptly once they end up with his office. The Scottish Commissioner (who, granted, has a much smaller office and a much smaller scope of responsibility in that he only deals with FOI complaints concerning Scottish public authorities) has an average closure time of just 4.37 months (2020-21), with 60% of all complaints to his office being dealt with within 4 months (the Freedom of Information (Scotland) Act 2002 makes provision for the Scottish Commissioner to deal with all such complaints within 4 months, but there is flexibility). It is not a like-for-like comparison due to the significant differences in volumes of work; however, the ICO needs to put more effort and resources into trying to resolve complaints much more quickly.

Turning to the issue of enforcement; some public authorities have a horrendous reputation for compliance with FOI, especially around the timeliness of responses. For some authorities these issues have existed for a decade or more. Previous Commissioners have seemed not just reluctant but almost wholly disinterested in exercising the significant enforcement powers that they possess to tackle problems here. Some public authorities have been having their compliance closely monitored by the ICO for years with no discernible improvement. Yet, no formal enforcement action has been taken to force these public authorities to make significant improvements.

Enforcement must be proportionate; formal enforcement powers should not, in most cases, be a first resort. However, they must be utilised if the ICO is going to be taken seriously as a regulator. Other authorities watch what the ICO is doing; there is currently no real incentive to engage with the ICO over poor FOI performance. The threat of formal enforcement action effectively doesn’t exist because of the apparent reluctance of the ICO to use its enforcement powers. The ICO needs to adopt a much more robust approach to regulation, which can be achieved in a way that is consistent with the relevant provisions of the Legislative and Regulatory Reform Act 2006.

Data Protection

Some of the problems that exist with the ICO’s FOI function also exist in relation to its Data Protection function. When it comes to Data Protection, the ICO is too business friendly and has often acted more like a think-tank than a regulator in this field.

As I have already said, enforcement must be proportionate. However, the ICO needs to remember that it is a regulator first and foremost. It is not a professional adviser for data controllers; there are lawyers and data protection consultants out there who can (and should) be fulfilling the professional advisor role. The balance between the informal methods of encouraging compliance and the formal methods of enforcing compliance have been all wrong. The ICO is obliged to have guidance in place, but it is not its sole purpose to produce and promulgate guidance.

The Regulators’ Code [pdf] (which applies to the ICO) does require regulators to carry out their activities in a way that supports those they regulate to comply and grow. It provides that “[r]egulators should avoid imposing unnecessary regulatory burdens through their regulatory activities and should assess whether similar social, environmental and economic outcomes could be achieved by less burdensome means.” However, it appears that the ICO has historically taken this to a degree that is inappropriate.

The Regulators’ code also provides that “[i]f a regulator concludes, on the basis of material evidence, that a specific provision of the Code is either not applicable or is outweighed by another relevant consideration, the regulator is not bound to follow that provision, but should record that decision and the reasons for it.” The balance is all wrong with the ICO; it appears to focus too much on the provisions of section 1 of the Regulators’ Code and not enough on forcing compliance where other, less burdensome, means have obviously failed.

In short, the ICO needs to re-orientate its relationship with those it regulates so that it is in a much stronger position to deploy its considerable enforcement powers when needed. When it comes to data protection, the most powerful tool at the ICO’s disposal is not the fines that it can levy but rather the power to issue Enforcement Notices; these can be used to force controllers to stop processing personal data altogether, or in certain ways, and they can be used to require data controllers to take certain specified steps to bring them into compliance.

The recent Enforcement Notice [pdf] issued to the Ministry of Justice is an example of formal enforcement action coming far too late; the MoJ has a backlog of many thousands of Subject Access Requests. The ICO records in its Enforcement Notice that it first became aware that the MoJ’s backlog had grown again (following an Enforcement Notice in 2017) in January 2019. It then records a shift in the ICO’s enforcement activities as a result of the COVID-19 pandemic, but that was more than a year after the ICO first became involved with the MoJ, for a second time, over its compliance with the right of subject access. An Enforcement Notice was then issued in January 2022, almost 2 years to the day after it started to get involved with the MoJ for a second time. This is, in my opinion, an example of a failure in regulation. The ICO watched as the MoJ continued to fail in a basic and important aspect of data protection law; much earlier formal intervention ought to have been taken (especially given that this was the second time the ICO had to get involved with the controller over the same issue).

Conclusion

The overriding issue with the ICO, in my opinion, is that it has got the balance wrong between soft and hard regulation. The ICO needs to adopt a much more robust approach to regulation; neither the 2006 Act nor the Regulators’ Code prohibits this. However, the ICO seems to have become paralysed in its regulatory activity in a way that the neither the 2006 Act, nor the Code which flows from it, intended.

#Indyref2: You’ve (not) got the power (or do you?)

The Opinion of Lady Carmichael was published today in the case brought by Martin James Keatings against the Advocate General for Scotland and the Lord Advocate in which he was seeking a declarator from the Court of Session that:

  1. the Scottish Parliament has power under the provisions of the Scotland Act 1998 to legislate for the holding of a referendum on whether Scotland should be an independent country, without requiring the consent of the United Kingdom Government or any further amendment, by the Union Parliament, of the Scotland Act 1998 as it stands and
  2. that the Scottish Government’s proposed Act of the Scottish Parliament concerning an independence referendum contains no provision which, if passed by the Parliament, would be outside its legislative competence.

The issues before Lady Carmichael were essentially preliminary ones. To explain, in legal proceedings in Scotland parties can seek to “short-circuit” the process in certain circumstances by taking what are known as “preliminary pleas”; these can be designed to do a number of things, but are usually about either having the case resolved in its entirety without enquiry into the merits or to restrict the scope of the matters upon which evidence will be heard at a proof (for example, by preventing matters which are irrelevant from being probed at proof).

In this case the pursuer, first defender (the Advocate General for Scotland) and the second defender (the Lord Advocate) all had preliminary pleas. The pursuer was seeking decree de plano; essentially, the pursuer was arguing that the case could be resolved in his favour without the need for evidence to be heard at a proof. Meanwhile the first and second defenders had a number of preliminary pleas which overlapped to a great extent, but which were essentially that the pursuer lacked title, interest and standing to bring the case and secondly that even if he did have title, interest and standing to bring the case it was hypothetical, academic and premature. It was also argued that the case was incompetent because it sought to argue that the court did not have the power to grant the declarator sought because there was a legislative process set out in the Scotland Act 1998 (section 33 thereof). The Lord Advocate also sought to argue that the case was really an application to the supervisory jurisdiction of the Court of Session (that is, a judicial review).

In other words the two days or argument heard last month formed part of a debate on the parties’ respective preliminary pleas. This may seem dry and technical, but it is important, in my view, to understanding what Lady Carmichael decided and why.

The decision

The decision is ultimately given at paragraph 139 of the Opinion. That is that the action was hypothetical, academic and premature. In any event, the pursuer lacked standing to being it.

Court’s jurisdiction

Lady Carmichael’s decision deals first with the court’s jurisdiction (starting at para 90). This question was in essence whether the case was really an application to the supervisory jurisdiction and, if so, what was the effect of that (given that it was not brought using the procedures set out in the court’s rules for such cases). Very early on, at paragraph 90, Lady Carmichael tells us her view on this where she says that she does “not accept the second defender’s analysis that in seeking the declarators that he does, the pursuer in substance invokes the supervisory jurisdiction.”

The supervisory jurisdiction of the court can be invoked in the event that the Scottish Parliament acts outside of its legislative competence (this has happened many times, such as in Axa General Insurance Limited and others v Lord Advocate; Imperial Tobacco Limited v The Lord Advocate and The Christian Institute and others v The Lord Advocate). In this case, however, there was no allegation that the Scottish Parliament had exceeded its powers; there was no order being sought to reduce an Act of the Scottish Parliament or to require performance in relation to an omission. In essence, the pursuer was seeking the advice of the court as to the extent of the Scottish Parliament’s powers. However, the proceedings were “not applications to the supervisory jurisdiction.” (para 95).

Lady Carmichael also observed that even if they had been proceedings that were properly seeking the court to exercise its supervisory jurisdiction she would have been “reluctant to dispose of [the] proceedings (…) simply on the basis that they had been raised using the wring procedure.” (para 97) This was because, in essence, the means of disposing of a case that had been brought using the wrong procedure would not necessarily be to dismiss the proceedings, but rather it is likely that the court’s disposal would be to exercise its powers under the court’s rules to order that the case should proceed as a judicial review (para 99). Lady Carmicahel did not seem impressed with the second defender’s arguments in this regard pointing out that this sort of preliminary plea (i.e. one seeking dismissal on the grounds of incompetence where a mechanism existed to have the case assigned to the correct procedure) was of the kind which had been “deprecated” in a previous decision (para 101).

In essence, had it been the case that the matter should have proceeded by way of judicial review; the second defender should have (as it appears he had previously contemplated) made the appropriate motion at an earlier stage of the proceedings to have the action dealt with as a judicial review.

Does section 33 of the Scotland Act 1998 exclude the pursuer from bringing the action?

On this point, raised by the defenders, Lad Carmicahel considers that it was unnecessary to decide this point, but expressed the view that she doubted that it was true.

Was the action hypothetical, premature and academic and did the pursuer have standing?

At paragraph 103 of her Opinion, Lady Carmicahel notes that “consideration by a court of proposed legislation will normally be hypothetical and premature at any point before it is in its final form and has been passed by Parliament.” This is essentially because there is a range of things that can happen with a Bill as it proceeds through the parliamentary process: it could fail, it could be amended to bring it within competence and it could even be amended to take it outwith competence.

The pursuer contended that the decision in Wightman v Secretary of State for Exiting the European Union (which was the case that concerned whether the United Kingdom had the unilateral power to revoke its notice of its intention to leave the EU) meant that he had title, interest and standing to bring the present case. The pursuer’s argument here was essentially that a vote (a general election to the Scottish Parliament) was going to take place at which there would be before the electorate a promise to hold a referendum on independence whether the UK Government agreed or not. The pursuer argued that it was therefore necessary for the court to answer this question so that voters could make an informed decision. This, the pursuer said, was the same as the situation before the court in Wightman.

The defenders contended that only those with statutory functions under the Scotland Act 1998 (i.e. the Advocate General for Scotland, the Lord Advocate and the Attorney General) could ever have sufficient interest to bring a question to the court pertaining to the lawfulness of a proposed Act of the Scottish Parliament prior to the legislation having been granted Royal Assent. Lady Carmichael concluded (at para 126) that she did not need to answer this question, but doubted the correctness of the defenders’ position.

Lady Carmicahel also concluded (at para 128) that she did not need to reach a view on what intentions the Scottish Government had in respect of any draft bill. Lady Carmichael considered that this would not be determinative of whether there existed an issue of law on which the purser was entitled to a declarator from the court (para 128). The question for the court, in respect of the preliminary issues before it, was whether the court should provide an answer to the questions posed by the pursuer and not what the answers to those questions were (para 128).

Lady Carmicahel records that the pursuer advanced six reasons was to why the court was obliged to make the declarator, or declarators, sought. These are set out in paragraph 129 of Lady Carmichael’s Opinion. In respect of the first two, Lady Carmicahel concluded that they were “plainly raised prematurely”, were “hypothetical, and may never come to pass” (para 130). Lady Carmicahel noted that “answers provided by the court now, whether in the abstract, or on the basis of a draft bill, would not serve to avoid the difficulties apprehended by the pursuer” (para 130). Other remedies were available; any bill passed could be referred by one or more law officers to the Supreme Court, but even if it were not the act could be judicially reviewed and all of this could be achieved before any referendum was conducted under the authority of the legislation in question (para 130).

Adjudicating an on the lawfulness of proposed legislation before it is passed by the Scottish Parliament would be “premature and pointless” because it could be changed by amendments in Parliament before it is passed (para 131).

In respect of the case of Wightman, Lady Carmichael observed the discriminating approach adopted by the First Division of the Inner House in respect of whether the petitioners in that case had sufficient interest. The Division was only satisfied as to the sufficient interest in respect of the sole petitioner who was a MP and who would have had to participate in an inevitable vote (para 133). In Wightman, the votes of MPs would have directly determined “a matter of importance to every citizen of the United Kingdom” (para 133) and were voting in relation to a single issue (also at para 133). This was contrary to the position in a general election where the votes case by individuals are influenced by a range of different matters (para 137).

Lady Carmicahel also observed that “the ability to campaign politically or lobby for a desired result does not necessarily depend on information as to whether or not that result can be achieved with a change in he existing law” (para 135). Lady Carmicahel stated that “there is not the close relationship between the right to campaign and the advice sought that there was between the vote in which the MPs in Wightman were to be engaged and the advice that they sought” (para 135).

There is a difference between voters electing individuals to sit in Parliament and the votes undertaken by elected members in parliament. The pursuer sought to characterise the voters as the decision-makers as to whether legislation would be introduced, promoted and passed; however, Lady Carmichael did not accept that as being correct (para 136).

Lady Carmichael observed that it’s “important, that matters which may properly be the subject of political debate and campaigning in the democratic process are permitted to unfold and be worked out in the political process, and that the courts intervene only when they need to do so to fulfil their function as guardians of the rule of law” (para 141).

For the reasons set out in her Opinion, Lady Carmichael dismissed the pursuer’s action and observed that it was unnecessary and inappropriate for her to express an opinion on the question of law the pursuer sought an answer to (para 142).

Comment

Lady Carmichael’s decision is pretty lengthy and deals with a lot of issues that people only concerned with the answer to the main question will not be interested in.

I think it’s important to note a couple of things in respect of this case. Firstly, although it sought a decision on whether the Scottish Parliament could legislate for a referendum on independence, that question has not been answered. Indeed, Lady Carmichael expressed no view at all on the question. The result should not be read as agreeing with one side or the other on the answer to that question. In essence, if the courts are to answer that question it should be, in the opinion of Lady Carmichael, done once the legislation has been placed into its final form and passed by the Scottish Parliament.

There would be nothing at all stopping any member of the Scottish Parliament introducing legislation for a referendum on independence and the parliament then debating that legislation, amending it and passing it. The question would then be, if it was referred to the Supreme Court, whether the Scottish Parliament would have legislative competence at the point the bill is granted Royal Assent (Reference by the Attorney General and Advocate General for Scotland in respect of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, para 90); or whether the Scottish Parliament had legislative competence at the point of Royal Assent in the event of a challenge by way of judicial review after the fact.

The matter therefore remains undecided (as do other matters, such as whether section 33 does or does not exclude challenges pre-Royal Assent by persons other than the law officers referred to in that section). The pursuer has already indicated an intention to reclaim (appeal) the decision of Lady Carmichael to the Inner House of the Court of Session. In terms of the court’s rules he has 21 days in which to do so. It therefore seems that this is not the last word on this particular action and it’s certainly not the last word on the question of legislative competence.

Civil Legal Aid in Scotland: a vital system that is struggling

A recent open letter to the Scottish Legal Aid Board and the Law Society of Scotland’s Legal Aid Committee highlights the very real problem with civil legal aid in Scotland. The open letter concerned the fees paid by SLAB for work undertaken by the firm in a case before the UK Supreme Court. The case concerned the position of siblings in the Children’s hearing system and whether they should have the designation of a “relevant person”. In the end, the Supreme Court decided that they should not have the formal designation of a “relevant person”, but highlighted the importance of their involvement in the proceedings. That is just by way of background; what the solicitors complained of was the fee paid to them by the Scottish Legal Aid Board. They wrote that their fee was abated to just over £3,000. That may sound like a lot, but it is not at all for all of the work that would have went into preparing for a case in the Supreme Court which was heard over a period of two days.

Solicitors have been complaining about legal aid payments for a long time. Most of the recent public complaints have related to the criminal legal aid system; however, many of the same issues exist in the civil legal aid system as well.

Most civil litigation in Scotland takes place in the Sheriff Court; where solicitors typically do all of the work without the involvement of Counsel (although in more complex cases sanction can be sought to involve Counsel). In most civil cases the fees that solicitors receive are “block fees”; that is, a fee is payable for certain work no matter how long it takes. Each block of work is assigned a number of “units” and then there is a unit fee. The fee is calculated on the basis of units x unit fee. The current unit fee, applicable from April 2019, is £21.63. This unit fee was first set in 2003 at the rate of £19 per unit. So in the space of 17 years the unit fee has risen by £2.63 (or 13.84%). Averaging out the 13.84% increase over the past 17 years it gives an average of 0.84% per year (this is artificial because there hasn’t been an annual increase).

Inflation has been running considerably higher than 0.84% every year since 2003; using the Bank of England’s inflation calculator, £19 in 2003 would be worth about £30.27 in 2019 (the latest year that this calculator will allow you to calculate for). Again, it’s a rough estimation as it averages out inflation across the period. The calculator has worked it out on the basis of an average inflation rate of 3% per year.

What this shows us is that there has been a year-on-year real terms cut in the unit price paid by SLAB to solicitors for work undertaken; and a considerable one at that. Now, it would be fair to take account of the significant reductions in public spending that have occurred since 2010. However, assuming that the unit price had increased every year in line with average inflation between 2003 and 2010; and thereafter been a frozen until the 3% increase in 2019, the unit price would be in the region of (again, using the Bank of England’s inflation calculator) £24.13 today; higher than the £21.63 that it currently is (there is roughly an 11.5% difference).

Why should non-lawyers care about this? This cuts to the heart of our democracy. One of the central tenants of democracy is the rule of law; that doesn’t just apply between citizens and the state, but also between individuals and businesses. Without the ability to enforce rights (whether they be statutory rights or rights created by contract) they may as well not exist. Moreover, it is a disincentive to honour rights if you know that the other person is not going to be able to enforce those rights.

The reality is that more and more solicitors are withdrawing from providing legal aid services. They cannot afford to provide them. Lawyers typically to have an altruistic streak to their personality, but equally law firms are businesses and they need to make a profit. If law firms are not making a profit on their legal aid work then their privately paying work is having to subsidies that; it reaches a point where it becomes so uneconomical that firms either stop offering legal aid services altogether or they cannot continue to trade and close their doors (especially where the majority of their work comes from legal aid cases). This harms the rule of law; it makes it harder for people to find solicitors who can act for them if they’re unable to pay privately. The current concept of legal aid came into existence alongside other key aspects of our welfare system; it is a fundamental part of our welfare system.

There are some firms that make a considerable amount of money from the legal aid system. The annual report from SLAB shows what every single firm has been paid from the fund each year. However, there are a few things that those figures don’t reveal. Firstly, in the case of civil legal aid, firms are only paid at the conclusion of the case (although there have been some temporary changes made via the Coronavirus legislation allowing interim payments to be made; but this is temporary and does not reflect the usual position). Civil cases can last years; meaning these figures will inevitably include work that has been done in previous years. Civil cases lasting years has nothing to do with solicitors seeking to increase the fees that they get; that’s just not how it works. The delays often arise out of issues elsewhere in the system. Moreover, as indicated, most Sheriff Court work is paid on a block fee basis rather than an hourly basis; therefore, there is often no incentive at all for solicitors to “spin” things out to increase fees.

What should also be remembered is that these are payments to a business; like any other business. From those fees, the firms require to pay overheads. Every business has to pay overheads, but it is a factor that should not be overlooked when assessing how generous legal aid payments are: the overheads for running a solicitors firm are high. Many of these overheads relate to the highly regulated environment in which we (rightly) operate.

Finally, the firms making the most from legal aid will be doing “bulk work”; it probably accounts for the majority of the firm’s workload. The average cost to the taxpayer per case has fallen; so these large payments will also be coming from a large number of cases.

Our private rates significantly outstrip the amount we’re paid for legal aid. However, generally speaking the profession is not asking to be able to bill the taxpayer what we bill our privately paying clients. We recognise that the rates paid out of taxpayers’ money will be less; however, what we need is a system where the rates are increased more than a handful of times in the best part of 20 years. The system cannot continue to sustain the real term cuts of that it has seen historically. The system provides good value for money: our accounts are closely scrutinised and we need to justify every single charge to SLAB. Practitioners offering legal aid services are regularly subjected to “peer review” process; which looks at whether we’re complying with the technical requirements as well as the level of service being offered to the client. The peer review process is far from a box ticking exercise; our peers are tough but fair – if the standard of service offered is not up to scratch then we’re re-assessed and ultimately we can be stopped from providing legal aid if we fail to meet the standards.

The Scottish Government commissioned an independent review of the legal aid system in Scotland; it has reported and made many good recommendations about how to reform the system for the benefit of the public. On fees it concluded that it had seen insufficient evidence to support a general increase in fees; a conclusion that was criticised (and ultimately ignored, to some extent, by the Scottish Government who provided a general increase in 2019 anyway). The Scottish Government also established the “Legal Aid Payment Advisory Panel”; its work can be seen on the Scottish Government website. After the election next year, whoever forms the Scottish Government should prioritise taking forward the recommendations and conclusions of the review and the advisory panel.

Legal aid is a vital service and it is worth fighting for; politicians know that there are no votes in legal aid and so do not treat it with the priority that it deserves. In some respects the system in Scotland is in a much better place than the system in place in England and Wales; the Scottish Government hasn’t removed whole areas of the law from the scope of the civil legal aid system in the way that the UK Government has in England and Wales. However, that is not an excuse for refusing to deal with the issues in the system that exists here in Scotland (and those go beyond just the rates of pay) – this is an area within devolved competence; “at least we’re better than England” shouldn’t be an answer to criticism on any area of devolved responsibility – and legal aid should be no exception to that general proposition. Don’t let the Scottish Government dwindle the system away: it’s part of the safety net that exists and you never know when you may need it.

The lockdown and public protest

On 25th May 2020 the world was shown a video of a 46-year-old black man, George Floyd, being restrained on the ground by a number of police officers in Minneapolis. That video showed one police officer kneeling on the back of his neck for almost nine minutes. Mr Floyd died and the police officers involved have been charged with a range of offences, including one officer being charged with murder. The footage has rightly caused anger around the world. This anger has resulted in riots happening in various places around the United States of America and protests have been held around the world in support of the Black Lives Matter campaign. Protests have been planned for the forthcoming weekend in Scotland.

The first half of 2020 has seen governments across the world try to deal with COVID-19, a novel coronavirus first seen in the Wuhan province of China in late 2019. Figures available at the current time place COVID-19 as the leading cause of death globally in 2020 so far. Governments throughout the world have been responding to the virus by placing varying degrees of restrictions on those who live within their jurisdiction in an effort to try and contain the virus. Whether these restrictions are the best way to go about achieving this aim is something that has been debated since the restrictions started to come in, but this post is not going to consider that question. What this blog post aims to do is consider how the right of assembly in Article 11 of the ECHR interacts with the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the lockdown regulations”).

The lockdown regulations were made by Scottish Ministers on 26th March 2020 under powers conferred upon them by the Coronavirus Act 2020; they came into effect immediately. The Scottish Government has also published guidance on the lockdown and I have considered the interaction between the law and the guidance before (mainly in the context of the powers of the police and the approach to policing adopted in some parts of the United Kingdom). The lockdown regulations are what is known in law as “subordinate legislation”; that is, they are laws that have been made not by Parliament itself, but by government ministers exercising powers delegated to them by Parliament; in this case, it is power delegated to Scottish Ministers by the United Kingdom Parliament. When ministers are making subordinate legislation they cannot exceed the authority given to them by parliament. That is to say, if subordinate legislation made by Ministers includes something which Parliament has not given them the power to do then the courts can strike down the subordinate legislation to the extent that it exceeds Ministers powers (i.e. it is outside the Minister’s competence)

In Scotland, under section 57(2) of the Scotland Act 1998, Scottish Ministers do not have the power to make any subordinate legislation where it is incompatible with the rights under the European Convention on Human Rights (i.e. those rights listed in Schedule 1 to the Human Rights Act 1998). That includes both the right to freedom of expression (Article 10) and the right to freedom of assembly (Article 11). The lockdown regulations therefore always have to be read in a way that is compatible with the convention rights and where they cannot be read in compatibly with them, they will be outwith the competence of Scottish Minisers and “not law”.

Regulation 6 of the lockdown Regulations prohibits all gatherings in a public place of more than two people except in a list of specific circumstances. None of which would reasonably apply to a public protest. It is an offence to fail to comply with Regulation 6; however, Regulation 8(4) of the lockdown regulations provides a defence to an infringement of a Regulation 6 where the person has a “reasonable excuse”. Most will, by now, be familiar with the “reasonable excuse” provisions, but mainly in connection with Regulation 5, which provides that no person may leave the place that they are living except with a reasonable excuse. In respect of a public protest there are two parts of the lockdown regulations in play: there is Regulation 5, which comes into play when a participant leaves the place that they are living and then there is Regulation 6, when the arrive at the place where the protest is to take place.

In this post, I am only going to focus on the relationship between Regulation 6 and Article 11. That is because, if the protest would be lawful under Regulation 6 then it would follow that a person leaving the place where they live to attend the protest would be a reasonable excuse. To say otherwise, would be an absurd reading of Regulation 5 in the context of the lockdown regulations as a whole.

Article 11

This Article provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others. However, as with nearly all of the convention rights it is not an absolute right and can be subject to restrictions which are “prescribed by law” (for example Regulation 6 of the lockdown regulations) and which are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

The European Court of Human Rights has held that the exceptions in Article 11 are to be construed strictly and that only convincing and compelling reasons can justify restrictions. The restrictions must be in the pursuance of a legitimate aim and must be proportionate to that aim. The government has to be able to show a rational connection between the restrictions and the legitimate aim being pursued.

The lockdown regulations have been made for a specific purpose, which is set out in the preamble to the lockdown regulations which states that they have been “made in response to the serious and imminent threat to public health which is posed by the incidence and spread of coronavirus in Scotland.”

The Government has been clear throughout that large public gatherings of people pose a particular risk in respect of the spread of coronavirus. However, there are a number of things that need to be consider. Is the complete ban on public gatherings as included in Regulation 6 proportionate to the legitimate aim being pursued? Is there a less severe restriction that could be placed upon people? Also, there is, I would suggest, a difference between indoor and outdoor gatherings (indeed, the Government’s own guidance draws that distinction on meeting family members). Another relevant factor, I would suggest, is that a public protest is different in nature to a gathering for a football match or a music concert.

I have previously expressed concern that the apparent complete ban on public protest is something that is unlikely to be compatible with the convention rights, even in the current circumstances. For example, a protest which takes place in a large open space where everyone is staying at least 2m away from people who are not members of their own household and where appropriate face coverings and other protective clothing (such as gloves) are being worn may well present a difficulty for the Government. That is not to say that it would be impossible for the Government not to show that banning such a protest is a proportionate means of meeting their legitimate aim; only, that it will be considerably more difficult than, say, defending the ban as it relates to sports fixtures. However, on balance, there is, I think, a strong basis for suggesting that the Government would ultimately be successful in defending the current position if it was forced to, but in doing so it would be facing a reasonably strong argument that its actions were unlawful.

The subject-matter of the protest also has, I think, to play a part in the balancing exercise as well. Is it a protest that could reasonably be delayed to a point where the restrictions are less stringent than they are now or would the effectiveness of the protest be undermined if it were to be delayed? Clearly, the black lives matter campaign is front and centre in the global news cycle at the moment and that is, I think, a factor which would need to be weighed into the consideration. However, equally, the campaign is one that has (sadly) been going on for a very long time and is almost certainly going to need to continue beyond now. It is a depressing reality that there continues to exist in our world a significant degree of racism and racial prejudice. On balance, I’m not convinced that an urgency argument would necessarily tilt the balance against the government.

It may also be worth noting that the High Court in England and Wales refused interim injunctive relief in a judicial review in a challenge brought to the English equivalent provisions and brought with the aim of enabling a mosque to open for Friday prayers at the end of Ramadan. That case was concerned with Article 9 (freedom of thought, conscience and religion), but it is worth of note. In that case Mr Justice Swift did not think that “there [was] any realistic likelihood that the Claimant’s case on Article 9 will succeed at trial”. There are, of course, important difference between the cases: (1) the concern different convention rights; and (2) the circumstances are quite different – one concerns indoor gatherings while the present context is concerned with outdoor gatherings. Furthermore, it deals with different (albeit substantially similar) statutory provisions, but with the same underlying reasoning. Despite his findings, the judge granted permission for the judicial review to proceed. There are a number of challenges in England and Wales to the lawfulness of the lockdown generally, or to particular sets of circumstances. Some, on a first appearance, are stronger than others.

Reasonable Excuse

One other matter that should be mentioned is the “reasonable excuse” defence to a charge of breaching Regulation 6. Regulation 8(5) provides the non-exhaustive list of reasonable excuses that we have all become very familiar with over the past weeks. None of the examples listed would cover a public protest; however, it is not a complete list. It would be open to argue that a public demonstration on a matter of public interest is something that falls within a “reasonable excuse”. Whether the court would accept that it was a reasonable excuse standing the reasons behind it is another question altogether. I’m not convinced that a court would find the protest as a reasonable excuse to be in a gathering of more than two people outside of the circumstances provided for in Regulation 6.

Conclusion

I am not going to say that the protests definitely are legal or illegal; that is not something that can be said with complete certainty and would, ultimately, be a matter for the courts to determine. However, while I have some concerns that a complete blanket ban on all public protests might not be convention compliant, the court is only going to be concerned with whether restricting the protest concerned was or was not a breach of convention rights. On balance, however, I think it likely that the protest would be a breach of Regulation 6 and that the interference with the Article 11 rights would be considered a proportionate means of pursuing the legitimate aim of reducing the spread of COVID-19 and that it is rationally connected to that aim. It is not the job of the courts to decide on policy, only whether the policy is lawful. There may be alternative ways of achieving that aim and the court may, if it were the decision maker, have favoured one of those other ways; however, that is not the test. If the policy decision is lawful, then the existence of another decision that the court would have preferred is irrelevant. I may, of course, be wrong on both of these matters. The issues are complex: the right to freedom of assembly is a vitally important right in a democracy, but the circumstances in which we find ourselves are truly extraordinary.

I am not going to say whether people should or should not participate in a protest this weekend. That is a matter for them. If people do attend a protest in Scotland this weekend they need to consider that doing in doing so it is likely that the will be committing a criminal offence. Equally there may be a defence to that offence or grounds to challenge the lawfulness of the regulations in terms of their compatibility with convention rights. There are processes for dealing with such arguments should anyone ultimately be prosecuted and wish to take the argument. However, they should also consider that there is no guarantee, or even a strong prospect, of those defences or challenges succeeding. I cannot, as a solicitor, encourage people to break the law.

The Scottish police have, generally speaking, handled the policing of the lockdown far better than their colleagues in other parts of the United Kingdom. What action they will take is, of course, something for them to consider. Whether they would try to breakup a protest that was peaceful, socially distanced and in which the participants were taking all reasonable precautions not to spread the virus is something that I wouldn’t like to express a view on, but I would hope that they would approach the situation proportionally taking into account that the issues are very different to, for example, the gatherings that were seen last weekend around Scotland. The Chief Constable indicated today at the Scottish Governments briefing that Police Scotland had been working with some of those involved in the protests this weekend; I would encourage (for what it is worth) anyone organising a protest to engage constructively with Police Scotland. I would also encourage anyone who attends a protest to approach any engagement that they have with the police (whether that be Police Scotland or the British Transport Police) in a courteous and constructive manner.

It is not just the protest itself that needs to be considered, but how people are getting there. The use of public transport and people travelling from some distance away to attend the protest is all something that needs to be factored in. An increased number of people using public transport to get to the protest is likely to increase the risk to those who work on the transport system and also to those who are using the transport system to get to work that they cannot do from home (in particular, NHS staff). People travelling from far and wide also, one would assume, comes with risk of them becoming carriers of the virus which could result in increased numbers of infections throughout the country. These are considerations that should not, in my view, simply be dismissed or minimised. They are very real concerns. The basis of the government’s restrictions on gatherings is to limit as much as possible contact which is likely to enable the virus to spread within the community.

Finally, none of the above should be taken as formal legal advice. It is not intended as such; it is merely a consideration of some of the issues that arise. If I were to write a full appraisal of the matter, fully referenced with authority, this post would be far longer than it already is. This blog post has gone through several iterations and when I started to write it I did so with no clear idea where it would end up; such are the complexity of the issues at hand.

Coronavirus and the law: divergence between Scotland and England

I have written before on the problems that have arisen in policing the coronavirus “lockdown” from the conflation of law with government guidance. Those issues became relevant again at the weekend when the Prime Minister announced some changes to the lockdown guidance as it applies to England. There have been disagreements about the guidance and which guidance people should follow: the UK Government’s guidance or the guidance from the devolved administrations. In a purely Scottish context, following the new guidance from the UK Government would not be advisable as following some aspects of it may lead to you committing a criminal offence in Scotland.

As the policy positions of the devolved administrations and the UK Government have diverged, the Scottish Government has been encouraging people from England not to travel to Scotland.

The new regulations that apply in England (from today) were made yesterday. I have spent some time considering how the new English regulations interact with the Scottish regulations. Just how can authorities in Scotland deal with people who have travelled from England to Scotland? I foresee some very real problems here.

The starting point is Regulation 5 of the Scottish regulations. Regulation 5 sets out the restriction on movement. In terms of Regultion 5, a person is not permitted to leave the place where they are living, except to the extent that a defence is available; that defence is contained in Regulation 8(4). Reading the two together, it essentially means that a person may not leave the place where they are living without having a reasonable excuse. It is a criminal offence to fail to comply with Regulation 5.

The offence in Scotland relates to the act of leaving the place where you live. If you had a reasonable excuse when you left where you live then you have not committed an offence. On a literal reading of the regulations if you leave for a reasonable excuse and then stay out once you have completed whatever it was then no offence has been committed. Equally, if a person leaves where the live for a reasonable excuse together with a number of reasons that are not themselves be a reasonable excuse, no offence is committed.

The English regulations mirrored this position until 11am on 22nd April 2020, when their equivalent of Regulation 5 was amended to include the words “or be outside of”. Therefore, in England it became the position that if you stayed away from the place that you were living after your reasonable excuse for leaving had come to an end, you committed a criminal offence.

This issue is important when dealing with people who have traveled to Scotland from England. The Scottish regulations on movement of persons are entirely directed towards the act of leaving the place where a person lives. If a person left home with a reasonable excuse, they can theoretically stay outside for as long as they wish. If a person left home to buy food and then decided on their way home to sunbathe, then it appears that the act of staying out to sunbathe would not be a criminal offence.

It should be noted at this stage that things may not be as straightforward as that. It is likely that the courts will apply an objective test in respect of the reasonable excuse. A prosecutor may argue, and a court may accept, that there is a dominant purpose test (or similar) to be applied. If the trip to the shop was merely a ploy to facilitate the act of engaging in sunbathing, a court may well decide that no reasonable excuse existed at the point the person left home; and consequently, an offence was comitted.

If the Scottish regulations are entirely directed at having a reasonable excuse at the point a person leaves home; it is hard to see how the authorities in Scotland can adequately deal with people who have come from England to Scotland to do something that, had the place they live been in Scotland, would have constituted a criminal offence in Scotland. The offence is committed at the point the person leaves the place that they are living. In such a case, the act in question occurred in England and outside of the jurisdiction of the Scottish courts. I struggle to see how the Scottish courts could apply the law of Scotland to conduct which happened entirely in England.

Literal interpretations of legislation, whether primary or secondary legislation, is not the only way in which legislation may be interpreted. The courts could also seek to read into the regulations that Regulation 5 also covers being away from the place that a person is living by applying a purposive approach to the interpretation of the regulations. If the purpose of the regulations is to keep people at home as much as possible to help reduce and slow down the spread of the virus, then it wouldn’t be too much of a stretch for the courts to hold that staying away from home once the reasonable excuse has ended is also prohibited.

I don’t want to get into all the intricacies of statutory interpretation; as interesting as that may be, it would be far too long. Bennion on Statutory Interpretation (a book frequently consulted and cited when it comes to statutory interpretation issues) is in excess of 1,500 pages in length. However, although it is possible for the courts to read things into legislation; they can’t just go about reading words into legislation because they think there is a gap in the legislation that ought not to be there. It is not the job of the courts to legislate, only to interpret and apply the legislation. If the meaning of the provision is clear then that’s generally the end of the matter, even if the court does not think that’s what was intended by the provision. There is a distinction between inferring omissions and correcting a faultiness of expression where the literal reading produced an unintelligible result.

When it comes to absurdity, it is not so much concerned with whether the result itself is absurd, but rather it is concerned with whether applying the grammatical and ordinary sense of the words would lead to some absurdity, or some inconsistency with the rest of the instrument or would be repugnant to it. It’s this rule of statutory interpretation that, in my view, allows the inference that a person leaving the place that they live in order to visit a business that’s not required to be closed is a reasonable excuse; even if it doesn’t neatly fall within the non-exhaustive list. The contrary position would be absurd and inconsistent with reference to the rest of the statutory instrument.

If it is the position that being away from the place that a person lives does fall within the ambit of Regulation 5, then there is no difficulty in dealing with people who have traveled from England to Scotland and who are engaged in conduct which would, had they lived in Scotland rather than England, amounted to an offence. They are away from where they live and, in terms of the law of Scotland, they are so without a reasonable excuse. It would be irrelevant that had they been found in England in the same circumstances, they wouldn’t be committing an offence. Their presence in Scotland is all that would matter

However, if Regulation 5 does not include a person being away from the place that they live in addition to leaving that place, then there is a real problem for the Scottish authorities. The view which I have reached is that it is unlikely that Regulation 5 could be read so as to include being away from home as well as leaving home. That is a problem for the police in Scotland (although, a high degree of compliance with the Scottish Government’s “stay at home” message has undoubtedly helped) when dealing with people who do live in Scotland as well as when dealing with people who have come into Scotland from England. A change in Regulation 5 is probably advisable, even if neither of these problems are of a scale which would necessitate a change.

It goes without saying (or at least it should) that the above does not constitute formal legal advice; it’s merely an explanation as to how I formed the view that I have. No lawyer is correct all of the time and so I may, of course, be wrong.

Note: Post updated at 15:36 on 14th May 2020 to correct language that was unintelligible. The substance of the post has not changed.

Coronavirus, guidance and the law

The United Kingdom, like the rest of the world, is in the midst of a public health emergency. COVID-19 is spreading through the world with devastating consequences for individuals, families and communities. Ministers in each of the four governments within the United Kingdom have made Regulations, either under the Public Health Act 1984 (England and Wales) or the Coronavirus Act 2020 (Northern Ireland and Scotland). Those Regulations can be found here:

England
Northern Ireland
Scotland (and the Scottish Amendment Regulations)
Wales (and the Welsh Amendment Regulations)

There is some difference in the form that the Regulations take, but there is very little difference in the substance of the Regulations applicable in each of the four constituent parts of the United Kingdom. I don’t intend on dealing in this post with the differences in substance that do exist between the Regulations in each of the four nations. Instead, my focus in this blog will be on something different. It will be on the difference between the guidance issued by the governments and the Regulations made by Ministers.

On social media there has been a large amount of concern expressed at the way in which the public health emergency is being policed. We’ve already seen examples of one police force arrest, detain and charge someone with an offence that didn’t even exist (the judge presiding over the case didn’t come out of it smelling of roses either) and of overly-restrictive interpretations of the law (such as only being permitted to buy “necessary” items when in the shops or only being permitted to make necessary journeys) and other examples of the law seemingly being made up on the spot (such as the South Yorkshire Police officer filmed telling people, contrary to the express words of the English Regulations, that they couldn’t be in their front garden).

I will say this before I go any further: of course there will be plenty of police officers applying the law diligently and fairly, having sensible and proportionate conversations with people in their communities; however, their good work is being over-shadowed by the poorly worded and inaccurate communications coming out from official police sources (such as social media accounts and websites). It won’t be the good work that determines the way in which the police will be viewed in light of this pandemic. What people will ultimately look at is the poor decisions, the unlawful actions and how wide-spread they were. Every poor decision, every unlawful action (no matter how well intentioned) will reflect badly on the police.

The Chief Constable of Northamptonshire Police was in the press this week declaring that the public had now had enough time to get used to the Regulations. Well, the same is true for the police. If police officers are unfamiliar with the Regulations then they should spend more time reading them and less time listening to press conferences by politicians.

There has been a considerable conflation between the guidance and the law. That doesn’t just extend to the Police, the Government has been equally unhelpful in this regard. I am not objecting to the police publicising the guidance nor am I objecting to the Police having conversations with people in their communities about the guidance. What I am objecting to is the conflation of the two. They are not interchangeable. The guidance contradicts the law in a number of areas; the guidance is far more restrictive than the law actually is. This has been known for some weeks and the law has gone uncorrected, we can therefore deduce that these difference were probably not a mistake and that the “gaps” in the law are not mistakes; instead, we must work on the basis that they were as a result of deliberate policy decisions taken by Ministers. It is not for the police, nor is it for the courts to attempt to fill perceived gaps in statutory provisions.

An example that keeps being used when the difference between guidance and law is brought up is the Highway Code. That, however, is a fundamentally misconceived comparison. The Highway Code was originally made under section 45 of The Road Traffic Act 1930. Section 38(1) of the Road Traffic Act 1988 expressly retains the Highway Code. The remainder of Section 38 makes provision for the updating of the Highway Code, including for scrutiny by Parliament of proposed amendments which are not made in consequences of the enactment, amendment or repeal of statutory provisions. Finally, the legislation expressly permits the Highway Code to be used to help prove or disprove liability in both civil and criminal cases. It is therefore a statutory code and is not an appropriate comparator for non-statutory guidance.

The guidance issued by Ministers in relation to coronavirus is non-statutory, indeed Ministers could have sought powers from Parliament when passing what is now the Coronavirus Act 2020 in order to issue statutory guidance or codes and made provision for how they should be treated. However, they did not. Where the guidance contradicts the express words of the Regulations, it will be entirely ignored by the Courts and it should also be entirely ignored by the Police when they are working out what powers the Regulations do and do not give to them.

While there are no cases from the appellate courts interpreting these Regulations we do not start from scratch when it comes to interpretation. There are clear rules, built up over a very long time, as to how statutory provisions are to be interpreted. These rules are well known to lawyers; Parliament will be deemed by the courts to have known them when passing the primary legislation and Ministers will also be deemed to have known them when making the Regulations. The phraseology used in the Regulations is clearly intended to be flexible rather then prescriptive. The lists of “reasonable excuses” expressly provided for in the Regulations is non-exhaustive and the list that appears in the Regulations is very different to the list that is repeated every day at ministerial press conferences. There is, for example, no prohibition in the Regulations on buying non-essential items (including luxury food items). Neither is there a prohibition on making “unnecessary journeys”.

Also, the UK Government has recently updated parts of its guidance in response to pre-action correspondence challenging the lawfulness of aspects of its guidance. That is a clear reminder that although the Government can issue non-statutory guidance it is constrained by the law as to what that guidance contains. It is therefore necessary to not simply look and see what the guidance says, but also to consider whether it is lawful (e.g. does it discriminate on the grounds of a protected characteristic). The courts will also, rightly, reject any part of the guidance which, while not contradictory to the coronavirus regulations, is otherwise unlawful.

The Human Rights Act 1998 still applies, it has not been amended or modified by any of the Coronavirus legislation. The Act does permit flexibility; however, legislation will always be sought to be read compatibly with it. Indeed, Secondary legislation (such as the Regulations linked to at the start of this post) is even more vulnerable to it than Acts made by the UK Parliament. It is almost certain that the appellate courts will seek to interpret the coronavirus laws as narrowly as possible given their considerable infringement upon our rights and liberties. It is unlikely to interpret it in a way that is wider than what is absolutely essential for the purpose that it was made for. Proportionality in the interpretation will be key; the courts will certainly not accept the more extreme interpretations given to them by some police officers.

I’m not just going to criticise the police in this post. I hope to provide some possible solutions to these problems; my ego doesn’t stretch to me assuming that anyone will pay the blindest bit of notice to them, but nevertheless it is important that I seek to balance the criticism with some suggestions of what the police could start doing.

The Police could help by starting to clearly differentiate between the guidance and the law in their public communications. Where they taking action in respect of criminal offences then they should leave out all mentions of the guidance and instead only refer to the law. Where they are encouraging compliance with the guidance they should leave out all references to enforcement.

Those mostly responsible within the police for public communications are not police officers, but the senior leadership of the police forces should get involved. They should be taking steps to establish protocols to ensure that confusing and inaccurate things are not published. Perhaps a senior officer with a good understanding of the Regulations could be appointed to work with the corporate communications team within the force? They could be a point of contact for the PR team so that they can run things past them before they’re published, someone who can field enquiries by the press and be the face of the local response to the policing of these Regulations. That would help to ensure clear, accurate and consistent messaging. If there isn’t a senior officer with a good understanding of the Regulations the Chief Constable could perhaps task one to spend time getting up to speed with what the Regulations say, how they differ from the guidance and where the guidance contradicts the law.

The conflation between the guidance and the law will not be helping the police logistically either. No doubt the police are being inundated with reports of conduct which, while not in compliance with the guidance, is not actually an offence. The police could probably do without unnecessary contact from the public. However, their current strategy is most likely going to be encouraging that contact by not adequately differentiating between things that they have powers to deal with and things that they are powerless to deal with. As police resources become stretched they will require to direct those resources towards people actually breaking the law (whether that be the coronavirus laws or other offences such as assaults, sexual offences, thefts etc.). So, changing their communications strategy is also in their interests from a resources perspective.

Finally, there is no contradiction at all in saying that people should seek to follow the governments’ guidance and apply common sense while at the same time the police should not be confusing the law with the guidance and should only seek to enforce the law. As an asthmatic who is entitled to the flu vaccination on the NHS each year I am in the “high risk group” (although I don’t fall into the very high risk category as my Asthma is generally well controlled). I’ve been following the government’s guidance. I’ve not left my property since Monday (when I went to buy food from the shops). I’ve been engaging in social distancing since before the laws were made. Indeed, by the time the Scottish Regulations were made (which are the ones that directly apply to me and to my life) I had already been in “lockdown” for over a week. Personally, I would quite like it if everyone just stayed at home so as to reduce the risk to me of contracting this virus. However, as a lawyer I am a firm believer in and supporter of the rule of law. It is sacrosanct; especially in emergencies. The rule of law is what makes us a democratic society rather than a totalitarian one.

Maugham v Advocate General for Scotland (Part 1: Interim Orders)

Maugham v Advocate General for Scotland is the latest in a long line of Brexit related litigation that has been ongoing in the Scottish courts (as well as courts elsewhere in the UK). Lord Pentland was today considering a motion in the Petition by Jolyon Maugham QC for interim suspension and interdict. In particular, the Petitioner was seeking interim orders in terms of paragraphs (i) and (ii) of the Prayer of the Petition; which are in the following terms:

“(i) to suspend ad interim the purported agreement which is said by the United Kingdom government to have been concluded between it and the European Union and the United Kingdom government, on the basis that this agreement provides for Northern Ireland to form part of a separate customs territory to Great Britain; and

(ii) for interdict ad interim against Ministers of the Crown in right of the United Kingdom including the Prime Minster (and anybody acting on their behalf or at their request) from entering into arrangements under which Northern Ireland is to form part of a separate customs territory to Great Britain”.

Essentially, the Petitioner was asking the Court to make temporary orders pending the full consideration of the Petition. This Petition is aimed at the latest version of the Withdrawal agreement negotiated between the United Kingdom and the European Union. That Withdrawal agreement is due to be considered by Parliament tomorrow (Saturday 19th October 2019).

Before the court can grant interim orders of this kind; it requires to be satisfied of the following: (1) that the party seeking the orders has a prima facie case (that is whether, on the face of it, does the person asking for the interim orders have a case which would entitle them to the full order); and (2) whether the balance of convenience favours making the order. If the court is satisfied as to both of these issues then it will make the interim orders sought by the party.

This morning, the Lord Ordinary (Lord Pentland) heard argument from Senior Counsel (O’Neill QC) for the Petitioner and Senior Counsel (Moynihan QC) for the Respondent (the Advocate General for Scotland – who represents the United Kingdom Government in the Scottish courts) in respect of whether these orders should be granted or not. As is usual with these sorts of matters, a decision quickly followed and the Lord Ordinary’s Opinion was published shortly after 5pm this evening. Lord Pentland refused the interim orders sought by the Petitioner and made the usual orders for advertisement, intimation and Answers.

In refusing the motion for interim orders, the Lord Ordinary questioned the competency of the Petition, noting that “[t]he orders sought would unquestionably interfere to a major extent with the proposed proceedings in Parliament” [22]. Proceedings in Parliament are subject of privilege and cannot be challenged or interfered with by a court. This will be a significant issue that the Petitioner will have to overcome if he continues with his Petition (although, given that Parliament will now debate and likely vote on the new Withdrawal Agreement tomorrow; quite what proceeding with the Petition would achieve is not overtly clear).

The Petitioner’s case appears to be based on the premise that the latest version of the Withdrawal Agreement negotiated between the UK and the EU would breach section 55 of the Taxation (Cross-Border Trade) Act 2018. The Petitioner’s case here was that section 55 of the Taxation (Cross-Border Trade) Act 2018 (“the 2018 Act”) constrained how the Government could exercise its prerogative powers in respect of foreign affairs. Senior Counsel for the Petitioner argued that “section 55 was a prohibition specifically directed to what the United Kingdom Government can or cannot do in this area. In particular(…) the section does not allow the Government even to propose for ratification by the UK Parliament any arrangement allowing for Northern Ireland to form part of a separate customs territory to Great Britain as this would involve the United Kingdom Government impermissibly having entered into an arrangement with another party to allow for such a result.” The Lord Ordinary described this part of the Petitioner’s case as being, at best, a weak argument [23].

In my view, for what is worth, even if the Petition manages to overcome the significant hurdle of its apparent incompetent nature, the section 55 argument itself is one that is unlikely to find favour with the court. Parliament is supreme and Parliament may change the law. If section 55 of the 2018 Act presents a difficulty with the envisaged withdrawal agreement then Parliament may amend or repeal section 55 of the 2018 Act so as not to cause any difficulty. In any event, there is a principle in statutory interpretation known as “implied repeal”; that is, where a later statutory provision is in conflict with an earlier statutory provision, the later provision takes precedence and the earlier one is impliedly repealed. There are some exceptions to this, for example, in relation to what have been termed “constitutional statutes” where the courts have held there would have to be an express repeal. Whether section 55 of the 2018 would fall into that category is, in my view, doubtful and as such the principle of implied repeal would likely apply.

For those reasons, the Lord Ordinary determined that the Petitioner had not presented a prima facie case.

In terms of the balance of convenience, the Lord Ordinary found that it was stringly against the court granting the interim orders sought by the Petitioner. As such, the Petitioner was unsuccessful in his motion; however, this is not the end of the Petition. Today’s hearing was not a full hearing on the merits of the Petition. The Petition is still live; the court has made the usual orders for intimation, advertisement and Answers. This means that the Advocate General will now have the opportunity to lodge Answers to the Petition.

This Petition, although for Suspension and Interdict, is an application to the supervisory jurisdiction of the Court of Session; in other words, it appears to be a Petition for Judicial Review which seeks suspension and interdict as the remedies (see, for example, statement 2 of the Petition which states clearly that the purpose of the Petition is to “ensure that Ministers of the Crown in right of the United Kingdom do not breach their public law obligations laid down in statute”). Therefore, it will have to come before a Lord Ordinary to determine whether permission should be given for the Petition to proceed after Answers are lodged; this is governed by section 27B of the Court of Session Act 1988. It is a low hurdle that has to be crossed in order to secure the court’s permission to proceed: the court only has to be persuaded that there is some prospect of success which is more than fanciful; there doesn’t need to be a probability of success. The permission test is designed to eliminate fanciful claims, but not necessarily to prevent weak claims from progressing to a full hearing of their merits.

This is, in my view, a case that will almost certainly fail to clear the low hurdle that it needs to proceed beyond the permission stage. It seems to be a fanciful claim with no real prospect of success.  The section 55 argument is, as the Lord Ordinary has identified, a weak one (placing it at its highest). However, there is the more fundamental question of competence. It seems to me that the Petition is trespassing into matters covered by parliamentary privilege. However, I may well be wrong on the permission question and we will have to wait and see what happens when matters reach that stage.

Finding the balance: LAD Media Ltd -v- Informtion Commissioner

On 18th January 2017 the Information Commissioner exercised her powers under Section 55A of the Data Protection Act 1998, as modified by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), and served a Monetary Penalty Notice [pdf] on LAD Media Limited in the amount of £50,000.

LAD Media is a Greater Manchester based lead generation and data brokerage company operating in the financial services and debt and claims sectors.  The company had engaged in a direct marketing campaign sending 393, 872 SMS messages.  The numbers had been bought in from a third party and the contract between LAD Media and its supplier warranted that all of the numbers had valid consent for the purposes of direct marketing.  In fact there was not valid consent in place which enabled LAD Media to utilise them for marketing.

LAD Media appealed the penalty to the First-Tier Tribunal (Information Rights) on 6 grounds.  The Tribunal’s decision [pdf] records that it refused 5 out of the 6 grounds of appeal and allowed one ground of appeal.  The successful ground of appeal related to the amount of the monetary penalty notice.  The Tribunal reduced the amount from £50,000 to £20,000. In doing so the Tribunal has given some guidance on relevant factors in setting the amount of a Monetary Penalty, although, it was clear that it wasn’t being prescriptive.

Relevant considerations include:

  • The circumstances of the contravention;
  • The seriousness of the contravention (as assessed by (i) the harm caused, or likely to be caused, by the contravention; (ii) whether the contravention was deliberate or negligent; (iii) the culpability of the recipient, including reference to any steps taken to avoid the contravention)
  • whether the recipient is an organisation or an individual, including its size and sector
  • the financial circumstances of the recipient, including the MPN’s impact
  • Steps taken to avoid further contravention(s)
  • Any redress offered to those affected by the contravention

The Tribunal also stated, at paragraph 48, that it considers deterrence as a relevant factor and that this extends not only to deterring the recipient from further contraventions, but also to deterring others.

In the case of LAD Media, the tribunal took a number of factors into consideration; including that it was the only contravention of PECR and that it was the first time that the LAD Media had engaged in a marketing campaign of this nature.  The Tribunal was provided with LAD Media’s accounts for 2014, 2015 and 2016; it noted that at the time of the contravention there was a substantial increase in both turnover and profit.  It also noted that there was no evidence that LAD Media would go bankrupt if it had to pay the MPN nor what the real impact of paying a MPN would be (see paragraph 49).

At paragraph 50 the Tribunal noted that the lack of provision of full information to the Commissioner and the woeful lack of due diligence undertaken were aggravating factors.  Although, there is little indication as to how the Tribunal treated these aggravating factors in setting the £20,000 figure for the Monetary Penalty.

What does this case tell us?

This tribunal decision ought not to be slavishly followed by anyone; it does not bind the Commissioner or the First-Tier Tribunal.  However, it does provide some interesting and useful guidance as to the sort of matters that the Commissioner ought to be taking into account when determining the amount of a Monetary Penalty Notice.

On financial impact, it is clear that the Tribunal considers that the Commissioner ought to be considering what the impact of the penalty will be on the recipient’s finances; however, that should be taken in context with what it said about deterrence.  It suggests that while the financial circumstances of the recipient are a relevant consideration, they may not necessarily be determinative.  Recipients should probably expect any monetary penalty to be painful financially.

How the data controller responds to the contraventions in question may be of importance in mitigating against the amount of the monetary penalty.  Holding your hands up to a breach and taking steps to try and prevent future contraventions may well go in a data controller’s favour.  However, the Tribunal considered the level of due diligence taken by LAD Media to be an aggravating factor, so any steps taken following a contravention may well be outstripped by a failure to take adequate steps in the first place to prevent a contravention.

The Tribunal seemed unimpressed with the way in which LAD Media dealt with the Commissioner following the contravention; reference was made to a lack of full disclosure and this was noted to be an aggravating factor.  There may be a temptation to try and minimise things in the hope of minimising the extent of any financial penalty; however, this approach could have the opposite effect and result in an increased penalty.

There is only one law: British Law (or is there?)

Paul Nuttall MEP, Leader of the United Kingdom Independence Party, kicked off lots of discussion on twitter today with his suggestion that upon this fair island there is only one law and that it is British law.  Many people have lined up to correct Mr Nuttall’s understanding of law within the United Kingdom, while some people (and they are by far in the minority) have tried to argue that he is correct.  So, is there only one law in the UK?

I will assume for these purposes that Mr Nuttall was referring to the UK and that he was not ignoring the existence of Northern Ireland (Britain referring only to England, Scotland and Wales – the UK’s full title being the United Kingdom of Great Britain and Northern Ireland).  The United Kingdom is divided into three separate legal jurisdictions:  those of England and Wales, Northern Ireland and Scotland.  So far as the law is concerned each jurisdiction might as well be a foreign country.  Lawyers qualified in one jurisdiction are not permitted to practise law in any of the others (with a few minor exceptions, which I shall return to later) without first undergoing a process of re-qualification.  The legal systems are very different from one another (and the substantive laws are completely different in many key areas of law, such as the criminal law).

The separate nature of Scots law has existed throughout the lifetime of the political union between the Kingdoms of England and Scotland.  The treaties and Acts that gave effect to this political union preserved the separate Scottish legal system.  The systems have developed independently since the beginning of the political union (but have, at various times, influenced each other).  The historical development of Scots has been very different from that south of the border.  There has been a big influence from continental “civil” law (“civil” as in the legal system, not to be confused with “civil” as all the laws of the land that are not criminal – yes, it’s a trifle confusing!) including French and Roman Law (indeed, it is still a requirement to have studied the roman law on property and obligations in order to be called to the Bar in Scotland).

There are areas where the law overlaps to a great extent and these could be classed as “British Law”, but I suggest that this is the wrong classification (for reasons I shall come onto shortly).  Some examples of these include Road Traffic laws (although there are some divergences, particularly around the drink-drive limit); anti-terror laws, immigration laws, employment laws and company law (although, there are some differences here as well).  An example exception to the general rule that a lawyer qualified in one jurisdiction cannot practise law in another without re-qualifying would be in the case of employment laws.  A Scottish Solicitor could move to London (which, of course, is in England) and practise employment law from there within the Employment Tribunal and the Employment Appeal Tribunal without the need to re-qualify in England and Wales.  That is because the substantive law is the same and the Tribunals (at present) have UK-wide jurisdiction (and so lawyers from all of the three UK jurisdictions have ‘rights of audience’).

The employment law example doesn’t hold true for all of the examples given above of areas where the substantive law is the same.  Take road traffic laws and anti-terror laws as an example; these are matters of substantive criminal law and are dealt with in the criminal courts.  A Scottish Solicitor, couldn’t represent someone in a Magistrates’ Court charged with a driving offence, or in the Crown Court charged with an anti-terror offence.  Equally, an English, Welsh or Northern Irish Solicitor couldn’t appear in the Sheriff Court or Justice of the Peace Court in Scotland to represent someone being prosecuted for a road traffic offence.  There is a lack of ‘rights of audience’.

Where a lawyer in one jurisdiction represents a client from another in a tribunal with a UK-wide jurisdiction, it can be problematic when matters come before the courts on appeal.  An example of this can be seen in a tax case from 2015.  The case in question is Taylor Clark Leisure Ltd v The Commissioners for Her Majesty’s Revenue and Customs.  In this case the Appellant, Taylor Clark Leisure Ltd (a company registered in Scotland), had instructed Philippa Whipple QC to represent them in the UK Tax Tribunals in connection with a VAT appeal (along with Philip Simpson QC, a member of the Scottish Bar); they were now looking to appeal to the Court of Session in Scotland.  Ms Whipple is a Barrister in England and Wales and thus had the right to appear for the Scottish Company in the UK Tax tribunals.  The Court of Session held, unanimously, that she had no right to appear in the Court of Session.

The 2015 case above highlights the position that the three legal jurisdictions in the UK are, for all intents and purposes, foreign countries.  Even where a matter is of UK-wide application, the different jurisdictions can have a significant impact upon the course of litigation.  It is not possible for an English lawyer who has not either been admitted to the public office of Advocate, nor as a Solicitor in Scotland (and then been granted extended rights of audience) to appear in the Court of Session.  That would hold true of other courts in Scotland as well.

It is probably fair to compare the situation to that of EU law, where you have 28 different member states (and many more jurisdictions – the UK is not the only member state with more than one jurisdiction) with different legal systems that share some of the same laws.  Although, that comparison isn’t exactly in point because of the Establishment Directive (which doesn’t apply to inter-member state jurisdictions); but that’s not for here!

What of the UK Supreme Court?  Doesn’t it have UK-wide jurisdiction?  Yes, it does.  However, it is not straight forward, certainly insofar as Scotland is concerned (as a Scottish lawyer I couldn’t possibly begin to speak about the situation in England and Wales or Northern Ireland).  Before we go any further, it might be useful if I explain (briefly) the concept of precedent.  Precedent, in law, means that where a court that is higher than the court considering a matter has made a decision on the same point of law, the decision of the higher court is binding upon the lower court (unless it is possible for the lower court to distinguish the case before it from the one in the higher court).

Applying this rule strictly, the UK Supreme Court is higher than the Court of Session and therefore, logically, all decisions of the UK Supreme Court on the same point of law are binding on the Court of Session.  That’s not quite how it works; only decisions of the UK Supreme Court that arise out of a Scottish case are binding on the Court of Session (or any other court in Scotland); decisions from the UK Supreme Court arising out of cases from England and Wales or Northern Ireland are persuasive (in the same way that a decision of the Supreme Court of Canada may be considered persuasive authority in a Scottish court).  For practical reasons, the Scottish courts will generally follow a decision from the UK Supreme Court on a point of law that arises from a UK-wide law which has come from a case from England and Wales or Northern Ireland.  After all, if the UK Supreme Court has decided the law on a particular point in one way in one case, it is unlikely that it will decide it a different way in another case (although it is possible).  That pragmatic view does not alter the fact that a UK Supreme Court authority from an English (including Welsh) or Northern Irish case is merely persuasive in a Scottish court.

Then, there are criminal law matters.  The highest appellate court for criminal matters in Scotland is the High Court of Justiciary when sitting as an appellate court.  There is no right of appeal to the UK Supreme Court.  The UK Supreme Court has gained jurisdiction in respect of Scottish criminal appeals in very limited circumstances as a result of devolution.  An accused person who complains that their human rights have been infringed can appeal to the UK Supreme Court, but only on that ground.  The UK Supreme Court does not, however, have the power to quash a conviction or to alter a sentence in a Scottish criminal appeal; it must remit the case back to the High Court of Justiciary to apply its decision to that case.  Nor does it have the right to interpret criminal offences enacted by the Scottish Parliament, nor consider common law offences in Scotland; except upon the limited grounds that there has been an infringement of EU law or the European Convention on Human Rights.

In short, it is, in my submission, incorrect to say that there is one law applicable across the whole of the UK called British law.  There are three separate laws across the UK (and a fourth developing as a result of devolution to Wales) and the laws in many key areas are very different (an English criminal lawyer would probably look at you funny if you mentioned hamesuken to them).  It is more accurate to say that there are three legal systems which share some of the same laws.