Category: Public Law

#IndyRef2 and the Supreme Court

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

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

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

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

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

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

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

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

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

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

[60] It is important in limine to make a clear distinction between an Act of the Parliament and a Bill. Only a provision of an Act can be outwith legislative competence (1998 Act, s 29(1)). The contents of a Bill cannot be, since a Bill has no legislative force. The 1998 Act makes express provision for both the person in charge of a Bill and the Presiding Officer to express their views on legislative competence. The phraseology is careful and is designed to ensure that such an expression does not amount to a decision which is subject to the supervisory jurisdiction of the court. The Act goes on to provide expressly for the scrutiny of Bills at a stage after a Bill has been passed by the Parliament but prior to it receiving Royal Assent. It has confined that scrutiny to the Supreme Court of the United Kingdom and then only on the application, within a limited window of time, of the principal law officers of Scotland and the United Kingdom (1998 Act, s 33(1)). This is the only method of scrutinising a measure for legislative competency prior to Royal Assent.
[61] If it were otherwise, there would be the potential for conflict between applications which challenge competency made by other persons to the Court of Session or a sheriff court in advance of Royal Assent. Put another way, “the coexistence of two systems, overlapping but varying in matters of detail… would be a recipe for chaos” (R (Child Poverty Action Group), Lord Dyson at para 35 citing Unisys [2003] 1 AC 518 Lord Millett at para 80). The time frame for applications to the UK Supreme Court would be rendered somewhat redundant, if an application from one of the law officers could be made prior to the passing of the Bill by the Parliament. The idea that the law officers are able to seek such scrutiny only after the passing of a Bill would be rendered nugatory if they could do so during the Bill’s passage through Parliament.

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

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

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

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

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

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

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

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

Lord Advocate’s apparent change of position

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

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

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

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

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

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

#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:

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
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.

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.

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.