Category: UK Constitution

#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 and the law: divergence between Scotland and England

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brexit, Article 50 and the Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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.

Data Protection and the #EUref

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

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

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

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

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

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

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

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

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

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

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

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

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.

West Lothian, EVEL and fudge

The ‘West Lothian Question’ continues to rage on following the Independence Referendum last year, and it has been exacerbated by the Smith Commission. What is the solution? A clear majority of Scots voted to remain part of the United Kingdom, whatever you believe about why people voted in that way is irrelevant; that is the situation we are in.

The Conservative Party has outlined a policy to deal with the West Lothian question which is, quite frankly, entirely unworkable. Trying to police exactly when Scottish MPs can and cannot vote on particular laws will be almost impossible. Even in devolved areas, legislation passing through Westminster can have a direct impact on Scotland (and not just via the Barnet Formula). Often, there will be parts – or even just a few sections – in a Bill passing through Westminster that extend to Scotland. It is entirely ridiculous to suggest that Scottish MPs should not be able to vote on legislation directly affecting their constituents, simply because the bulk of it deals with a devolved area. It would be a nightmare if you started removing those sections from Bills and putting them in separate Bills – you’d effectively be doubling the work of the UK Parliament.

It gets even more complicated when it comes to Cabinet positions. Will a Scottish MP be prevented from being Prime Minister because that would have them setting the agenda in devolved areas for England? What about Home Secretary? Policing is devolved to Scotland, but that is only part of the Home Secretary’s responsibilities: immigration and national security remain two of most significant elements of that role which are not devolved. What about Secretary of State for Health: the NHS is devolved, but the regulation of the health professionals (for example) is not. When it comes to Transport, much of that is devolved; however, there are areas (particularly around regulation) which are not. The list could go on. If it is not to apply to Cabinet positions, then why not? Is there any real difference between setting the policy that the legislation seeks to enact. What does this do for Collective responsibility in the Cabinet?

Then there is the Committees proposal: how will that actually work in practice? Will Scottish MPs be prevented from sitting on certain committees? Simply excluding them for the committee stages for certain Bills would be a nightmare situation. The make-up of committees is determined according to the make-up of the House of Commons. It could mean that Committees no longer represent the make-up of the Commons when you start excluding certain members from the Committees. Committees could become completely farcical; especially when it comes to Bills that include bits applicable to Scotland – would those MPs be allowed to participate in the Committee then? If not, why not? Will it mean that Committee sessions will have to stop and start frequently?

Moreover, this could not possibly apply only to Scottish MPs: what about MPs elected to represent Northern Irish constituencies or Welsh constituencies? The West Lothian question, as it is known, also applies to those situations. It certainly does appear as though the proposal put forward by William Hague would exclude those MPs as well as Scottish ones, but undoubtedly the reporting focusses on Scottish MPs. However, if you do extend this rule to Northern Irish and Welsh MPs as well things would become even more complicated and much more messy – the devolution settlements for Northern Ireland, Scotland and Wales are all very different. There are things which Scotland has (and will soon have responsibility for) which Northern Ireland and Wales do not, equally Northern Ireland has responsibility for matters that Wales and Scotland do not. As for Wales, from memory, it currently has the poorest devolution settlement; but it has responsibility for issues that its MPs vote on in the Commons for England. The same issues then arise with the Cabinet as discussed above. Keeping track it all will become nothing short of a nightmare!

In short, the proposal by the Conservative Party is a fudge (and an utterly terrible one at that!).

So, what is the answer? There is no going back to the pre-1999 situation; that much is certain. The legislative bodies for Northern Ireland, Scotland and Wales are here to stay. The only real answer is to move towards a more federal structure. There needs to be an entirely separate English legislative body and the powers of the national legislative bodies (those being the Welsh Assembly, Northern Irish Assembly, Scottish Parliament and the newly created English one) would have to be aligned so as not to have the ridiculous situation we currently have of different national legislative bodies having different areas of competence.

Whenever the question of an English Parliament is raised there are often cries of “we don’t need more MPs”; that’s probably true. However, if you were creating a separate legislative body for England with its own members, the number of MPs required in the UK Parliament would be significantly less: there would be absolutely no need for there to be 650 people elected to the House of Commons. They could easily represent much larger constituencies because they would be dealing with far fewer matters than is currently the case. Overall, there might be a slight increase in the number of elected representatives to ensure fairness, but that shouldn’t stop us from moving in that direction. It’s certainly not a quick fix, but it is a far fairer and much better solution that the fudge announced by William Hague today. Yes, it will take time and yes there will be a financial cost to it in the short term (a separate English legislative assembly would likely need its own place to meet – unless you abolish the Lords and have it sitting in there), but really this should have happened in 1998!

What exactly this would look like is a conversation that would have to be had. All parts of the UK would have to work together to work out what should be handled by the National legislative bodies and what should remain handled by Westminster. There are obvious things that would need to be handled at a UK level such as Foreign Affairs, Defence, National Security, Immigration and the currency. There may well be other areas where it would be beneficial to be handled at a UK level, but unless we have the conversation we will never know.

It was clear that whatever the result of the independence referendum in Scotland that there would be significant constitutional change in the UK; that remains the case and it is both a conversation and a process that we cannot walk away from; we certainly cannot try and fudge it!