The Scottish Parliament and #indyref2

With Nicola Sturgeon announcing today at the Scottish National Party’s conference that the Scottish Government would be beginning a consultation on an Independence Referendum Bill next week, the inevitable discussion as to whether the Scottish Parliament has the power to legislate for a referendum on the question of Scottish Independence has arisen once again.  On one side there are (largely) independence supporting individuals who state categorically that the Scottish Parliament does have the power to legislate; meanwhile, on the other there are (largely) union supporting individuals who state categorically that the Scottish Parliament does not have the power to legislate.  In my view, both groups are wrong to be so sure in their view:  the situation is not altogether clear.

The Scottish Parliament is not equivalent to the UK Parliament.  It is not sovereign nor is it supreme.  The Scottish Parliament is a creature of statute; it was established by virtue of Section 1(1) of the Scotland Act 1998.  Its powers are set out within that Act, as amended by the two subsequent Scotland Acts of 2012 and 2016.  The supreme and sovereign UK Parliament has established a body with the power to make legislation applicable to Scotland.  The Scotland Act 1998 did not spell out specifically what the Scottish Parliament was able to legislate on, rather it stipulates what the Scottish Parliament cannot legislate on – these areas are set out in Schedule 5 to the Scotland Act 1998 and are known as “reserved matters”.  In respect of these matters the UK Parliament has the sole right to legislate.  On all other areas, the Scottish Parliament may legislate; however the UK Parliament retains the right to legislate on these devolved areas (but will not normally do so without the consent of the Scottish Parliament).

In assessing this question, it is important to look at the language adopted by the UK Parliament within the Scotland Act 1998.  Section 29 of the Scotland Act 1998 makes provision for the legislative competence of the Scottish Parliament.  It begins, in subsection (1), by providing that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”  This is quite clear: where the Scottish Parliament legislates beyond its competence the Act (or the parts thereof that are outside of the Scottish Parliament’s legislative competence) have no legal effect.  Subsection (2) then goes on to list the circumstances in which legislation enacted by the Scottish Parliament would be outside of its legislative competence, the second of which is where “it relates to a reserved matter.”

That all seems pretty clear, any legislation that relates to a reserved matter is outside of the legislative competence of the Scottish Parliament.  As mentioned earlier in this post, the reserved matters are set out in Schedule 5 to the Scotland Act 1998.  Right at the beginning of Schedule 5 to the Scotland Act 1998, under the heading “The Constitution”, there appears the words “the Union of the Kingdoms of Scotland and England”.  Again, this all seems fairly clear: the Scottish Parliament cannot make legislation that relates to the Union of the Kingdoms of Scotland and England.  The Scottish Parliament could not, for example, pass a “Great Repeal Act” of its own with the effect of dissolving the Union between Scotland and England.  So, surely that’s an end of matter?  A Bill to hold a referendum on Scottish independence clearly relates to the reserved matter of the Union of Scotland and England?  Well, it’s not quite that simple.

Section 29 doesn’t just contain two subsections; it contains a total of 5.  The third subsection is one of importance here.  Subsection (3) provides that, subject to subsection (4), when determining whether an Act of the Scottish Parliament relates to a reserved matter, consideration should be given “to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”  It is this subsection that makes things a little more interesting.  Whether a referendum bill was beyond the scope of the Scottish Parliament’s legislative competence would depend, inter alia, upon (i) the purpose of the Bill and (ii) its “effect in all of the circumstances”.

At this juncture we need to consider referendums and their place within the UK’s constitutional framework.  This is an issue upon which the current Judicial Reviews before the High Court in London on the triggering of Article 50 of the Lisbon Treaty following the EU Referendum partly revolve.

The UK has long been recognised as a representative democracy.  The doctrine of Parliamentary supremacy means that Parliament is supreme – nothing and nobody can bind Parliament; one Parliament cannot even bind another.  What one Parliament legislates for today can be repealed by a future Parliament if that is what is within the will of the Parliament that acts to repeal a piece of legislation.  What some argue, therefore, is that referendums do not bind Parliament – indeed, they cannot bind Parliament.  This is where the argument that referendums are merely advisory come from.  This argument essentially reduces referendums to glorified national opinion polls.  They have no effect beyond telling Parliament (and the Government) what the view of the electorate is on the specific question posed at the specific date on which the referendum was held.  You may argue that this not very democratic, but that is beyond the scope of this post.

If the argument that Referendums were merely advisory and were for all intents and purposes glorified national opinion polls is correct, then it can be argued (with some force) that a Bill to enable a referendum on the question of Scottish independence is not beyond the scope of the Scottish Parliament’s legislative competence.  All that Bill would do is enable a national opinion poll to take place – it would not bind the anybody to do anything.  It would certainly not bring about the end of the union between Scotland and England.  Applying section 29(3), it could be argued that the purpose of the Bill is not to bring about the end of the Union, but rather to find out – on a national scale – what the view of the people of Scotland is on the question of Scottish independence (and only on the date upon which the referendum is held).

However, politics comes into play and this could have an impact upon what effect of the Referendum Bill has “in all the circumstances”.  Let us imagine, for a moment, that the Bill is passed and not challenged before the Courts.  The vote happens and there is a majority vote in favour of Scottish independence with a substantial turnout of the eligible electorate.  This would, in practical terms, be something that could not realistically (or politically) be ignored.  The United Kingdom is a union of four separate and distinct countries:  England, Northern Ireland, Scotland and Wales.  It would be hard for the United Kingdom, internationally, to ignore a vote by one of the constituent parts of the United Kingdom to leave that union.  A failure to give effect to it might well lead to international condemnation, pressure and sanction upon and against the United Kingdom.  In short, even if Referendums are merely advisory, the effect of a “yes” vote to independence, at a political level, would mean that Scotland would have to leave the Union and become independent.  The effect “in all the circumstances” here would be to bring about the end of the union between Scotland and England.  This argument, like the first, has some force to it.

The two arguments are quite finely balanced.  The courts could take the view that constitutionally, whatever the political ramifications, referendums are merely advisory and therefore a referendum result in favour of Scottish independence would be binding upon nobody.  Equally, the court could take a look at the words “in all the circumstances” and conclude that the political ramifications are relevant in determining what the effect of a Scottish Referendum Act would be.

As noted above, the EU Referendum Judicial Reviews could be important in determining the question of the Scottish Parliament’s legislative competence to hold a referendum.  If the High Court (and subsequently the Supreme Court) was to determine that the referendum decision on 23 June 2016 did not amount to a “decision” at all because it was effectively nothing more than an opinion poll, then that would lend significant weight to the view that the Scottish Parliament does have the competence to legislate for a second independence referendum.  However, if the High Court were to determine that the EU referendum did amount to more than a glorified opinion poll, then that would lend significant weight to the view that the Scottish Parliament does not have the competence to legislate for a second independence referendum.

This post has, I accept, vastly oversimplified issues that would inevitably take days to argue before the Courts; however, it is quite long enough.  There is absolutely no way that it would be possible to get into the fine details of the issue on a blog – indeed, there are probably several PhD theses in this seemingly simple question.  However, it does (I believe) result in the conclusion that, at this stage, it is impossible to be wholly certain one way or the other, as to whether the Scottish Parliament does (or does not) have the power to legislate for a second independence referendum.  However, one thing can be certain: a referendum bill passed by the Scottish Parliament without there being a further Section 30 Order will be challenged in the courts.

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.

Statutory Judicial Directions in Sexual Offences Cases

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

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

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

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

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

Independence

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

Impartiality

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

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

How else can this issue be addressed?

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

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

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

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

The Black Spider Letters – Part IV

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

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

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

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

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

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

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

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

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

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

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

Case Note: City of Edinburgh Council against a decision of the Lothian Valuation Appeal Committee

On 9 April 2014 the Court of Session issued its decision in an appeal by the City of Edinburgh Council against a decision of the Lothian Valuation Appeal Committee. The Courts judgment can be read in full here. The case concerns liability for council tax while a property is uninhabitable as the result of renovation and construction works.

Facts

Mr Miller purchased a residential property in March 2007. The property was unfurnished and unoccupied. Following his purchase he requested that the Council assess the property to determine whether the property was habitable or uninhabitable. In May 2007 the Council duly carried out that assessment and found that the property was uninhabitable due to the major construction works being undertaken.

In December 2007 Mr Miller applied to the City of Edinburgh Council for a Building Warrant in order that he could construct an extension to the property. After delays, the Building Warrant was granted in November 2008. In July 2011 the City of Edinburgh Council determined that the property was still “unfit for human habitation…due to the extensive renovation work underway”. However, no statutory prohibition notice was served on Mr Miller.

In December 2012 the Lothian Valuation Appeal Committee held a hearing concerning the liability for Council Tax in respect of this property. Mr Miller’s solicitors argued that as it would have been an offence under section 21(5) of the Building (Scotland) Act 2003 for Mr Miller to inhabit the property, occupation of the property was prohibited by law and paragraph 7(a) of Schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997 was engaged. Mr Miller’s Solicitors argued that the property was exempt from council tax.

The Council argued before the Lothian Valuation Appeal Committee, and the Court of Session, that Section 21(5) of the Building (Scotland) Act 2003 was not engaged. It relied upon the fact that the works that the Building Warrant authorised had not been registered as having by the issuing of a Start of Works notice to the Building Standards department. The Council also argued that there had been no evidence that the works which the Building Warrant authorised (that is the construction of the extension) had commenced.

The Lothian Valuation Appeal Committee accepted Mr Miller’s argument and found that the property was exempt from Council Tax. The Council appealed.

Decision and reasoning of the Court

The Court of Session quashed the decision of the Lothian Valuation Appeal Committee.

The Court of Session accepted that the exemptions from the payment of council tax are located in Schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997 and that liability does not require there to be a person living in the property. The Court did not accept that section 21(5) of the Building (Scotland) Act 2003 was engaged in this case. However, the Court went on to say that even if section 21(5) of the Building (Scotland) Act 2003 was engaged it considered that occupation could include occupation for the purposes of carrying out renovations to a property. The Court did not accept that occupation could only mean habitation, indeed section 21(5) of the 2003 Act clearly draws the distinction by excluding occupation for the purposes of construction or conversion. The Court went on to say that paragraph 7(a) of the Council Tax (Exempt Dwellings) (Scotland) Order 1997 was not engaged as occupation was not prohibited by law; the property would have been occupied for the purposes of the renovation.

The Court also considered that the Council Tax (Exempt Dwellings) (Scotland) Order 1997 provided a specific exemption for the purposes of major repair work or structural alteration. These can be found in paragraphs 2 and 4 of Schedule 1. Paragraph 2 relates to dwellings which are under repair, and since 2000 has been limited to a period of 12 months since the day that the property was last occupied while paragraph 4 relates to dwellings which are both unfurnished and unoccupied. The Order places a restriction of 6 months since the last period of 3 months in which it was occupied. The Court considered that as there were specific statutory provisions, which were time limited, in respect of properties like that in this case, it would not be appropriate to read paragraph 7(a) in the way that the Lothian Valuation Appeal Committee had. The Court agreed with the City of Edinburgh Council that Parliament’s intention would be defeated with such an interpretation of the provisions.

Comment

This case deals with the statutory interpretation of the Council Tax (Exempt Dwellings) (Scotland) Order 1997. It is clear that properties that are undergoing substantial repair work, which prevents them from being inhabited, are entitled to an exemption from council tax only for a period of 12 months following the date at which they are vacated for the purposes of that work. It is not possible to escape the payment of council tax by simply obtaining a Building Warrant and then never obtaining the required Completion Certificate. While Section 21(5) of the Building (Scotland) Act 2003 prevents an individual living in a property which is undergoing conversion or construction and where no completion certificate has been accepted, it does not prevent its occupation in a way that would engage paragraph 7(a) of the Council Tax (Exempt Dwellings) (Scotland) Order 1997.