Category: Legal System

#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.

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.

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.

Where crime and the civil law intersect: the case of DC v DG and DR

Today, Lord Armstrong sitting in the Court of Session in Edinburgh (and this is an important point to which I shall return shortly) has issued a judgment which has attracted much publicity over the course of today.  Lord Armstrong ordered that the Defenders, two former Scotland international football players, should pay, on a joint and several basis, the Pursuer £100,000 in compensation.  This follows an allegation by the Pursuer that the Defenders raped her in January 2011.

This is an important case, but it is necessary that some preliminary matters are covered.  The first is that although this case relates to an allegation that an extremely serious criminal offence has been committed, the Court of Session deals entirely with civil cases.  What we have here is a claim for damages raised by the Pursuer.  The Pursuer had made a complaint to the Police which initially proceeded to prosecution, but for some reason the prosecution was discontinued.  Lord Armstrong’s judgment does not go into detail on this (and the reasons why the criminal case was dropped are irrelevant to the task his Lordship was faced with).  The most likely explanation for the prosecution not proceeding would be that the Crown no longer believed that it had sufficient evidence to provide a realistic prospect of success in proving its case against the accused footballers.

Someone not familiar with the law may well reach the conclusion that such a decision by the Crown must be wrong in view of Lord Armstrong’s judgment; however, it does not necessarily follow that a finding of liability in a damages action means that the Defenders would be convicted in a criminal court.  In both the civil and criminal courts there is the burden of proof and the standard of proof.   The burden of proof generally lies with the party who bring the case (there are some exceptions to this, but they’re not relevant here and it may only confuse matters to explain them).  In a case brought in the civil courts, such as the Court of Session, the burden of proof generally lies with the Pursuer as the person brining the case.  In a criminal case the burden of proof rests with the Prosecution. That tells us who needs to prove their case, but how do they do that?  That is where the standard of proof comes in.

There are two standards of proof.  Where a case is brought in the civil courts, the pursuer needs to prove their case on the balance of probabilities.  Essentially this means that the judge deciding the case needs to be satisfied that the Pursuer’s version of events is more probable than not.  The judge deciding the case doesn’t even need to consider that the Defender’s version of events is more likely than the Pursuers.  If the Pursuer doesn’t prove their case on the balance of probabilities then they fail, even if the judge things the Defender’s case is a load of rubbish.  This contrasts with the situation in a criminal court where the Crown has to prove its case beyond reasonable doubt.  This is a substantially higher test to pass (and rightly so as the consequences of a criminal conviction are much graver).  It is not enough that the jury think that it is more probable that the complainer is the victim of the crime alleged and that the accused committed that crime than not; if they have even the smallest amount of doubt that has a reasonable basis, then the Accused is entitled to the benefit of that doubt and must be acquitted.

The effect of this is that it is much easier to prove something in a civil court than in a criminal court.  That means that although Lord Armstrong was satisfied that it was more likely than not that the events averred by the Pursuer occurred, it does not follow that if the same evidence were to be put before a jury that the jury would convict the accused.

Lord Armstrong’s decision is lengthy; it runs to almost 350 paragraphs over some 42 pages.  As would be expected with any civil judgment it sets out the case for the Purser and Defenders with reference to the evidence of the witnesses.  It then analyses the evidence and reaches a decision.  However, Lord Armstrong only had to be satisfied that the Pursuer had proved her case on the balance of probabilities.

What does this case mean?

For the Defenders this is not a criminal conviction; it will not appear on their criminal record.  Unlike if they were convicted in a criminal court they do not need to declare the finding in any future employment application; they cannot be required to sign the sex offenders register nor could they have faced imprisonment.  So far as the criminal law is concerned they remain innocent of the crime of rape.  It is important that this finding by the Court of Session (while in all probability comforting to the Pursuer) is not seen in the same light as if it were a finding of guilt in the High Court.  The Defenders, between them, need to pay the Pursuer (subject to any appeal) the sum of £100,000 – this is compensation, not a fine.  For the Pursuer it may well amount to a feeling, in some way, of justice.  It may well be one thing (among many) that helps her to move on and begin to rebuild her life – at the age of 30 she has  many more years of life left to live and hopefully those years can be better than the past 6 years.

The case also has a wider impact; not because it decides something new, but because of its high profile nature.  It highlights that where a criminal prosecution is not possible due to the higher standard of proof (or even where a prosecution ends up in a verdict of Not Guilty or Not Proven) it may be possible to have recourse through the civil courts.  We recently saw the (failed) attempt to privately prosecute Harry Clarke when the Crown refused to initiate proceedings against him for alleged criminal offences arising out of the tragic George Square Bin Lorry crash.  It may be that the families of those bereaved (along with those who suffered injury in the crash) elect to raise civil proceedings against Harry Clarke (or more likely Glasgow City Council, on the grounds of vicarious liability, as his then employer).

It is unlikely that every failed prosecution will result in a successful claim for damages in the civil courts.  Although the Pursuer only needs to prove their case to a lower standard of proof; they still need to be able to present the court with evidence to support their claim and this may still prove to be a difficult task depending on the circumstances of each case.  There are also the costs associated with brining a civil claim, which can be substantial (although legal aid may be available to those who qualify for it).  Even where a Pursuer is successful in their claim it is unlikely (if not guaranteed) that they will not recover all of the money they have spent in pursuing the claim.  It therefore may not be economically viable (even where legal aid is available due to the “clawback” provisions in the Regulations) to pursue the case where the amount of compensation awarded is likely to be less than the difference between what has been paid in legal fees and what is recovered through an award of expenses.

These are all matters that a solicitor can guide a potential Pursuer through and are matters that are kept under review throughout the lifetime of a case.  It may be possible to settle cases out of court which can substantially reduce the cost (and stress) of the case.  However, the civil courts are (and always have been) a place where a victim of crime can take their case where the Crown cannot prosecute (or where a prosecution is unsuccessful).

Brexit, Article 50 and the Supreme Court

On Monday some of the country’s most senior lawyers will gather in the Supreme Court and appear before the country’s 11 most senior judges.  The case calling before the Supreme Court is the appeal by the Secretary of State for Exiting the European Union against the decision of the Divisional Court in Miller v The Secretary of State for the European Union.  The case has come to be known as “the Article 50 case” and “the Brexit case” by many.  So much has been written on the subject already and by people who are far more expert than me; however, I thought I would throw my twopence in anyway.  In this post I will not express any view as to the merits of the Secretary of State’s case, nor of the Respondent’s case nor that of the interveners and other interested parties.

There has been a lot of sensationalist nonsense published and said about this case.  The issue before the Court is a very narrow point of law; however, it is not a difficult point of law to understand.  It is also an extremely important point of law and the narrowness and simplicity of it should not take anything away from its importance.  The issue for the court is whether the Secretary of State has a prerogative power to trigger Article 50.  The case is not about whether the UK can leave the EU nor is it about whether the UK should leave the EU.  The case is about the process of leaving the EU.

During the Referendum the Government said that it will give effect to the result of the referendum.  The result of the referendum was that those who voted to leave the EU outnumbered those who voted to remain.  It was a narrow result (despite what some might say), but the referendum was held on a simple majority basis.  One side only needed to win by one vote to win the referendum.  The result of this case does not affect the Government’s pledge to give effect to the result of the referendum; it is about how the Government gives effect to the result of the referendum.  It is a question of process and procedure.

In our democracy, the Executive (which is HM’s Government) gets its power primarily from two sources.  The first is from prerogative powers.  These are the remnants of the Monarch’s absolute power and authority.  These prerogative powers have, over the course of centuries, become constrained through the actions of Parliament.  In our system, Parliament is supreme; Parliament is sovereign and it can act to constrain the power of the Executive if it so elects.

The second source from which the Executive derives its power is from Parliament.  Through legislation, Parliament delegates some of its authority to the Executive.  This is where the power of the Government to make secondary legislation comes from.  This delegated authority is rarely absolute.  In the primary legislation delegating the authority (“the enabling legislation”), Parliament will set out the boundaries of the Executive’s authority.  That is how the courts are able to over-turn secondary legislation on social security benefits (for example) – it is because the secondary legislation steps beyond the powers delegated to Ministers by Parliament.  Ministers must either go back to Parliament to get the power needed to do what it is that they wanted to do or to get Parliament to enact the scheme that the Executive wants to enact.

This is in essence the separation of powers.  It is important that in any democracy that the power is shared between the Executive, Legislature and Judiciary.  Parliament is sovereign and is kept accountable by the electorate.  We do not send delegates to Parliament, but rather we send representatives.  What this means is that for the time our MP is sitting in Parliament we ask them to take decisions on our behalf.  As part of the process of an MP deciding how they are going to vote on a particular issue, they will inevitably consider the views of their constituents; however, their constituents cannot instruct the MP to vote in a specific way.  What the electorate can do if they are unhappy with the decisions that their representative takes on their behalf, is to elect a different representative to send to Parliament at the next election.

That brings us onto the question of referendums and their legal status.  As has already been discussed, Parliament is both supreme and sovereign in our democratic system.  It cannot be instructed by the electorate to act in a particular way; therefore, the referendum is simply advice to Parliament and to the Executive.  It would have been entirely possible for the face of the referendum legislation to have included the effect of the result.  The Act could have said that if the result was in favour of leave, that the Secretary of State shall give notice to the European Union of the UK’s intention to leave the European Union.  Such a step would have given the Secretary of State a clear statutory power to trigger Article 50; there could have been no litigation as to whether the Secretary of State had the power to trigger Article 50 or not.  This is what happened with the AV referendum in 2011; Parliament set out within the legislation the effect of a “yes” vote and the effect of a “no” vote.  In this case, Parliament did not do that and so there is no clear statutory power; thus the Government needs to try and rely on the prerogative power.

The effect that all of this has on the appeal in the Supreme Court next week is that the Court is determining the scope of the Executive’s power.  As already discussed, the Executive is subordinate to Parliament.  Government policy is not law.  The Government’s policy on the European Union is to leave the European Union.  It can only give effect to that policy within the constraints of its power.  If it doesn’t have the necessary power then it needs to get it from Parliament.

There have been complaints about the legal system treating the referendum vote as “a footnote”; in terms of the law that is all it is.  It is irrelevant for determining the legal question before the Court.  The prerogative power is, as discussed above, the remnants of the Monarch’s absolute authority.  If the prerogative gives the Executive the power to leave the European Union, then that would hold true irrespective of the result of the referendum (and even irrespective of whether there was a referendum at all).  What it would mean is that the Government could trigger Article 50 and bring the UK out of the European Union had the country expressed a view to remain in the European Union; it could even have done so without a referendum at all.  The prerogative is not about whether the Government has a popular mandate, or an instruction from the electorate to do something.  The prerogative is absolute, un-checked power in the hands of the 20 or so people who are members of the Cabinet to do as they please.  That, if you ask me, is the affront to democracy (but is really outside of the scope of this blog post).  So, because the prerogative is the absolute power of the Executive, the fact that there has been a referendum and the fact that the result of that referendum was an expression of a wish to leave the EU is an irrelevance for the court.

The Courts are there to decide questions of law.  The question as to whether the UK leaves the EU is a political one.  If the Supreme Court upholds the Divisional Court’s decision, the question of what Parliament will do is a political one also.  The Court cannot consider whether the UK should leave the EU, nor can it speculate as to how Parliament might act on the question.  It cannot, when deciding the case, pay any attention to how Parliament might act.  If you are fearful that Parliament might try to block Brexit then that is a matter to take up with your MP, not the Justices of the Supreme Court.

So, in short, the question before the Court is simply does the Secretary of State have the power to trigger Article 50 deriving from the prerogative powers.  If the answer to that is no, then it will be down to Parliament to give the Secretary of State that power.  How that plays out is a purely political matter.  The Supreme Court deciding that the Secretary of State does not have the power to trigger Article 50 says nothing to those voted vote leave or remain; it does not nullify or void the result (or anything close to that).  Conflating the political and legal issues is disingenuous and extremely dangerous.

Court Fees, Access to Justice and Freedom of Information

On Monday new tables of fees enter into force for the Sheriff Courts and Court of Session in Scotland.  The new table of fees is necessary because of the new Simple Procedure that is coming into force next week to replace the Small Claim procedure and to partially replace the Summary Cause procedure in the Sheriff Court.  It would appear that the Scottish Government has used this opportunity to increase some other fees as well.

The other increases are part of the Scottish Government’s aim to get “full cost recovery” in the civil courts; that is, that so far as is possible those who litigate in Scotland’s civil courts fully fund the cost of running those civil courts.  I have grave misgivings about such a policy for access to justice (and I am not alone in that view).  This blog has, in recent times, moved more towards the field of Information Law and to that extent, I am going to look at these latest court fee rises in the context of Freedom of Information appeals.

In Scotland, under the Freedom of Information (Scotland) Act 2002, if a person is dissatisfied with how a public authority has handled a FOI request they can make an application to the Scottish Information Commissioner (SIC).  The SIC has the power under the 2002 Act to make a decision as to whether the public authority has complied with the Act, and if not, she has the power to state what steps the public authority must take in order to comply with the act (including to order that the public authority release information to the requester).  If a requester or public authority is unhappy with the Commissioner’s decision there lies a right of appeal (on a point of law) to the Court of Session.

The Scottish appeals procedure differs vastly from the appeals procedure under the UK Freedom of Information Act, where a right of appeal (on both fact and law) exists to a specialist First-Tier Tribunal and then on to the Upper Tribunal and the Courts (on a point of law only).  There is currently no charge for lodging an appeal with the First-Tier Tribunal, nor for any step of process or a hearing.  That is not the case in Scotland.

Unless the party bringing the appeal is in receipt of Civil Legal Aid, there are court fees to be paid.  The appeals are also dealt with under Chapter 41 of the Rules of the Court of Session and go straight to the Inner House.  For those who are unfamiliar with the Scottish court structure, the Court of Session is split into two “houses”.  The Outer House hears cases at first instance and is usually presided over by a single Senator of the College of Justice; while the Inner House is the appellate court and hears appeals from the Outer House as well as other courts, tribunals and regulators (such as the Sheriff Appeal Court and the Scottish Information Commissioner).  Appeals from the Inner House are (with permission) to the UK Supreme Court; the Inner House is therefore Scotland’s supreme Civil Appellate court.  In the Inner House, at least three of Scotland’s most senior judges will sit to hear the appeal.

On 28 November, the Court Fees (Miscellaneous Amendment) (Scotland) Order 2016 shall enter into force.  Schedule 1 to that Order sets out a new table of fees in the Court of Session.  Paragraph 1 in Section B of the Table sets a new fee for lodging an “Appeal, application for leave or permission to appeal, summons, or other writ or step by which any cause or proceeding, other than a family action, is originated in either the Inner or Outer House (to include signeting in normal office hours)”.  The new fee is set at £300, up from £214.  So, in order to lodge your appeal against a decision of the SIC the Appellant (whether an individual or public authority) needs to stump up £300.  The Respondent (who is the SIC) will also have to pay £300 (again, up from £214) to lodge their Answers to the Appeal.

There may be other fees to pay along the way, depending on the procedure that ends up taking place; however, when it gets to the hearing of the appeal, the costs start to mount up significantly.  Each party (appellant and respondent) will be required to pay £500 (up from £239) per 30 minutes (or part thereof).  Therefore, a hearing that lasts a full court day (roughly 5-6 hours) will result in a court fee of between £5,000 and £6,000; and that is before solicitors’ fees and the fees of Counsel are added.  This is an astronomical figure.  It is not paid by anyone in receipt of legal aid (and legal aid is available for FOI matters in Scotland), but you do not have to be very well off not to qualify for legal aid.

This represents a significant barrier to accessing justice.  These are sums of money that most middle earners will struggle to get their hands on, even if they attempt the appeal as a party litigant (which given the complexity and sometimes archaic nature of the Court of Session Rules is no easy task).  When it comes to the question of FOI, it only strengthens my belief that appeals against decisions of the SIC should be to a lower court or tribunal in the first instance.

There is a much more fundamental point however; the civil courts should be accessible to everyone.  The level that court fees are rising to (and they are going to continue to rise over the next few years as the Government moves towards “full cost recovery”) presents a very real barrier to justice.  The Scottish Government accepted that fees represent a barrier to justice in respect of the Employment Tribunal fees set by the UK Government (and has pledged to abolish them when the power to do so comes to the Scottish Parliament in the near future).  However, the Government seems happy to continue with a policy of full cost recovery (that was, admittedly, started under the Labour/Liberal Democrat Administration that left office in May 2007).  It is a flawed policy that will place a very real barrier to the courts for very many people.  That, is a tragedy for justice and for democracy.

Can the Scottish Parliament block ‘Brexit’?

There has been some suggestion in the days since the EU Referendum, in which a sizable majority of Scottish voters voted to stay while a smaller majority of voters across the UK as a whole voted to leave, that the Scottish Parliament can in some way block the UK’s exit from the European Union.  That suggestion is, in my view, wrong; the Scottish Parliament cannot block the UK’s exit from the European Union.

Since Devolution there has been a convention operating whereby it has been understood that Westminster would not exercise its power as the sovereign and supreme legislative body for the United Kingdom to legislate in an area for which competence over has been devolved to the Scottish Parliament, without first obtaining the consent of the Scottish Parliament.  This convention is known as the Sewel convention.

Following the 2014 referendum on whether Scotland should become an independent country, a Commission was established by the UK Government to look at the Scottish devolution settlement.  That Commission, the Smith Commission, recommended that the Sewel convention was given legislative force.  Section 2 of the Scotland Act 2016 amends Section 28 of the Scotland Act 1998, which confirms in subsection (7) that Westminster can still legislate on areas of devolved competence, to add a subsection (8) which gives effect to that recommendation.  Section 28(8) provides that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

What this means is that Westminster will not normally legislate on a devolved area without first obtaining the consent of the Scottish Parliament.  However, it can still legislate on an area of devolved competence without the consent of the Scottish Parliament (for example, in a time of emergency and where it wouldn’t be practical to obtain the Scottish Parliament’s consent).

What relevance does this have to blocking the UK’s exit from the European Union?  It would appear to me to be of no relevance whatsoever.  Firstly, we are not in a situation where the UK Parliament is going to be legislating.  The UK’s withdrawal from the EU is an exercise by the Executive of the prerogative power to conduct foreign affairs.  The Executive might well seek a vote in the UK Parliament on exercising the prerogative power (in the same way that appears to be becoming convention with the prerogative power to declare war), but that is not a legislative act by the UK Parliament.  Secondly, the United Kingdom’s relationship with the European Union is a specifically reserved matter in Schedule 5 to the Scotland Act 1998.  We are not, therefore, dealing with a devolved matter; we are dealing with a reserved matter.  Section 28(8) of the Scotland Act 1998 only relates to devolved matters.

It might be the case that, when the UK Parliament comes to give legislative effect to whatever relationship the UK is to have with the EU in the future, the Scottish Parliament may be able to invoke Section 28(8) of the Scotland Act 1998.  If that legislation were to affect a devolved area the Scottish Parliament could very well refuse to consent to the legislation; however, that would not necessarily equate to it being blocked.  The UK Parliament might have to rely on the word “normally“ in section 28(8) to legislate anyway so as to give effect to, what will be by then, the UK’s international law obligations.

The Scottish Parliament is still free to debate and vote on any issues that it chooses to do so.  We could therefore see in the coming days or weeks a debate and vote in the Scottish Parliament on whether the Parliament agrees with the UK’s withdrawal from the European Union.  However, it cannot invoke what is now Section 28(8) of the Scotland Act 1998 in relation to this issue.  Moreover, even it if it could invoke Section 28(8) of the Scotland Act 1998, that would not necessarily have the effect of blocking the action it refused to give consent to.

Data Protection and the #EUref

Data Protection is not an area that people generally get especially excited about, but the rights contained in the Data Protection Act 1998 (“the DPA”) are important.  They enable individuals to find out (mostly) what information companies and organisations hold about them, where they got it from, what they do with it, who they give it to and what it says.  It also enables people to take a degree of control over what companies and organisations do with that information; including the ability to prevent a company from using their information for marketing purposes, forcing them to correct inaccurate information and forcing them to stop “processing” their information where the processing causes substantial damage or distress that is unwarranted.

The DPA implements an EU Directive into domestic law.  Data Protection law in the UK has its roots in European law.  However, it’s not just the DPA that has its roots in European law; the connected Privacy and Electronic Communications Regulations 2003 (the full name of which is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003) also implement European law into domestic law.  These Regulations relate to the use of personal data and are the regulatory regime that governs the use of electronic communications (such as E-mail, phone and text) to market directly to individuals.  These are the regulations which help deal with those annoying and unsolicited PPI and accident claims telephone calls.

In 2018 the Directive that underpins the DPA is being replaced with a new EU Regulation on Data Protection and the Directive underpinning the 2003 Regulations is currently being reviewed in light of the new EU Data Protection Regulation (the European Commission is consulting on this issue until 5 July 2016).

The DPA replaced the Data Protection Act 1984.  The 1984 Act was introduced to give protection to individuals in relation to the automatic processing of their personal data and was based upon the Council of Europe’s (the same Council of Europe behind the European Convention on Human Rights and Fundamental Freedoms) 1981 Convention for the protection of individuals with regard to automatic processing of personal data.

Now that there has been a brief account in respect of the history of Data Protection law in the United Kingdom, it is possible to thrust into the main purpose of this article; that is to consider Data Protection in the context of the EU Referendum.

If the UK votes to remain in the European Union then in May 2018 the United Kingdom will have to comply with the General Data Protection Regulation (which, being a Regulation, will have direct effect regardless as to whether the UK Parliament enacts a new Data Protection Act or not) together with the associated Directives; including whatever eventually replaces the 2002 e-Privacy Directive.  The associated Directives, together with some of the fudges in the new Regulation, will likely mean that there will be a new Data Protection Act to replace the current Act (probably towards the end of 2017).

If the UK votes to leave the European Union what happens is a bit more uncertain.  A vote to leave the EU will not mean that there is a complete end to the UK’s relationship with the EU, and that will have an impact on Data Protection.

The first thing to note is that a vote to leave will not mean an instantaneous split.  There currently isn’t really a process for an EU Member State to leave the Union so some time will be spent working out how that happens and there will inevitably be a time spent negotiating a new relationship with the EU; whether that is inside of or outside of the EEA.  It seems quite likely that we will still be in the EU come May 2018, which might mean that the GDPR will automatically apply – but that is entirely dependent upon what happens in terms of negotiations between the vote to leave and May 2018.

If the United Kingdom simply becomes part of the EEA then the result, insofar as Data Protection is concerned, will be identical to a vote to remain; the GDPR applies to the EEA countries (presently being Iceland, Liechtenstein and Norway) as well as to EU Member States.

If the United Kingdom leaves the EU and doesn’t join the EEA there will be bit more freedom in respect of Data Protection.  However, the requirement for Data Controllers within EU Member States not to transfer personal data to a country outside of the EU/EEA, unless there is an adequate level of protection for personal data, will mean that we will continue to have some form of Data Protection law.

It is possible that the UK could meet the adequate level of protection requirement with rights that are substantially lower than those afforded by the DGPR (when it enters into force) and so the UK’s Data Protection law will not necessarily be all that similar to the GDPR – especially if the government of the day is one that favours light-touch regulation and a lack of “red tape”.  That means that even if the UK is forced to comply with the GDPR initially, Data Protection law in the UK could change dramatically to something that affords much less protection than the GDPR.  What the law will look like though will not only depend upon the ideals of the government of the day, but what they think would be politically acceptable; over the last 30 or so years people have become much more wary about what governments, public agencies and businesses do with their personal data; so while the political will might be to substantially lower the level of protection afforded to individual’s personal data, the public will might not let them go quite as far as they wish!

In short, the future of Data Protection law in the UK will be very much influenced by the result of the Referendum and the eventual relationship with the EU in the event of a vote to leave.