Coronavirus, guidance and the law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Relevant considerations include:

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

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

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

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

What does this case tell us?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Litigation, Privilege and Subject Access

The English Court of Appeal has issued a judgment in relation to subject access rights under the Data Protection Act 1998 (“the DPA”). The Court’s decision centres on three main issues in relation to subject access requests: (1) the extent of the exemption for legal professional privilege; (2) when the effort to comply with a subject access request is disproportionate; and (3) the discretion of the court when considering an application pursuant to Section 7(9) of the DPA .

The right of subject access is one of the fundamental rights afforded to data subjects. It allows individuals to discover what information a data controller is processing about them, in what way they are processing it (including who it has been or may be disclosed to) and to check the accuracy of the personal data being processed. The importance of the data subject’s right is marked by the right of a data subject to apply to the courts in order to secure compliance where a data controller has failed to comply. It is not an absolute right; there are circumstances in which a data controller does not need to comply with a subject access request.

The Extent of the Legal Professional Privilege Exemption

Paragraph 10 of Schedule 7 to the DPA makes provision for exempting information from the subject access provisions in Section 7 where “the data consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings.”

In Dawson-Damer there were two interpretations of this exemption put forwarded, described in the judgment as the “narrow” and “wide” interpretations. The Court preferred the narrower of the two holding that the exemption “relieves the data controller from complying with a subject access request (“SAR”) only if there is relevant privilege according to the law of any part of the UK.” [45] The Court also held that “the DPA does not contain an exception for documents not disclosable to a beneficiary under trust law principles.” [54] The Court held that the Legal Professional Privilege exemption does not extend to such information. [54].

Disproportionate Effort

The Court held that whether complying with the SAR, or taking certain steps as part of the process of complying with the SAR, “will be a question for evaluation in each particular case [77]. The court noted that “it is clear from the recitals to the Directive that there are substantial public policy reasons for giving people control over data maintained about them through the system of rights and remedies contained in the Directive, which must mean that where and so far as possible, SARS should be enforced.” [79].

Court’s discretion

The discretion afforded to the Court under section 7(9) of the DPA is a “general discretion” [105]. The Court held that Durant v Financial Services Authority did not create a position whereby a data subject cannot exercise DPA rights for purposes outside the DPA. Durant was concerned with the scope of the term ‘personal data’ and as such the Court’s comments in Durant were in that context. They did not mean that where individuals had another purpose (for example, with a view to using the material in litigation) that they could not exercise their subject access rights. The Court noted that “it would be odd if the verification of data was always in practice a complete aim in itself which excluded all others…neither the Directive nor the DPA compels that interpretation. Nor has Parliament expressly required a data subject to show that he has no other purpose.” [108] The court did not that there might be a different outcome where an application under section 7(9) of the DPA “was an abuse of the court’s process…or if the claimant was a representative party who had some purpose which might give rise to a conflict of interest with that of the group or body he represents.”

Comment

This is an important case concerning the right of subject access under Section 7 of the DPA and is one that all data protection practitioners ought to be familiar with. Although it is not directly binding on the courts in Scotland (it being a decision of the English Court of Appeal), it is quite likely that a Scottish court faced with similar issues will arrive at the same conclusions as the Court of Appeal has done here.

The exemption for legal professional privilege is a narrow one; it does not cover information that might be the subject of such claims in jurisdictions other than one of the three UK jurisdictions, nor does it extend to claims of confidentiality that fall outside of the scope of legal professional privilege.

When it comes to disproportionate effort in dealing with a SAR, it is a balance between the effort to comply and the data subject’s right. It is clear from both the statutory provisions themselves and the comments of Arden LJ in this case that the data subject’s right is a fundamental one. As a consequence the barrier is a high one when trying to argue that complying would cause a disproportionate effect. The Court did not consider that the Taylor Wessing LLP had even begun the process, let alone be able to demonstrate that complying would be disproportionate. It would appear that data controllers will not simply be able to look at a SAR and dismiss it out of hand as resulting in a disproportionate effort; the fundamental nature of the right of subject access will trump the effort it is necessary to go to in to comply in most cases.

Finally, if you’ve ever been under the belief that law firms are data processors for client information then this case is clear that this is wrong: law firms are data controllers. If a law firm receives a subject access request from a third party then the personal data must be assessed carefully to establish whether privilege exists and where it does, it must be claimed.

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

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

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

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

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

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

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

What does this case mean?

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

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

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

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

Brexit and Parliamentary time: the Scottish Tories’ complaint

Conservative MSP Douglas Ross bemoaned, in the Scottish Parliament debating chamber, today the amount of time that has been spent discussing Brexit and its implications for Scotland. He felt that this was to the detriment to other matters. To be fair, it is to the detriment of other matters; however, that is the reality of the political landscape we find ourselves in. Whether people like it or not, Brexit is going to swallow up vast amounts of government time (both in Edinburgh and in London), parliamentary time (both in Holyrood and Westminster) and civil service time (both at a Scottish and UK level).

We hear talk about soft Brexit and hard Brexit, but the reality is that Brexit itself is hard. EU law directly affects or influences almost every single area of devolved responsibility. Reserved matters which will be affected by Brexit also have direct implications on areas of devolved responsibility. The reality is, especially as we continue through a period of austerity, that things have to give to make way for Brexit. More and more ministerial time will be taken up with Brexit as will the time spent by Civil Servants. Yes, the business of Government must go on (and it will do so), but the priorities will have to change. A lot of time will be spent on figuring out what needs to be done to ensure that when the UK leaves the European Union there aren’t any lacunas in the law and as time progresses and we learn more about what the UK’s new relationship with the EU will be legislation will need to be enacted (both in Holyrood and Westminster) to give effect to that. Ensuring that there are no lacunas and that the legislative framework is in place to give effect to our new relationship with the EU, whatever shape that will be, will feature highly on the legislative agenda between over the majority of this Session of the Scottish Parliament.

Mr Ross pointed out that Education was said by the First Minister to be her and her Government’s number one priority; well, education will be affected by Brexit. Changes to rules on immigration may well impact upon the recruitment of staff and students, it will have an impact upon issues like tuition fees and university and secondary school foreign exchange programmes to name some areas. Mr Ross highlighted the ambition of getting more women to take up the STEM subjects; well here is another area where Brexit will have an impact: through research funding. A lot of research funding (from PhD level all the way through to top end research) derives from EU sources. Research work undertaken can act as a way to inspire young people, including young women, into STEM subjects.

I have been known to castigate and criticise the SNP on many occasions over the years; however, I can’t help feel that the Conservative Party are being rather foolish here. It was the decision of the former Conservative party leader to hold the referendum that will now result in one of the biggest constitutional, legal and political upheavals in a very long time. Mr Ross and his conservative colleagues may not like the amount of time that Brexit will eat up over the coming years, but they’ll just need to lump it for that’s the reality of the political landscape in which we live.

The Case of Marine A

Yesterday the Court Martial Appeal Court (which, as the name suggests, hears appeals from Courts Martial) refused an application for bail by Alexander Blackman (more popularly known as ‘Marine A’) pending his appeal against his conviction for Murder. There was, predictably, an almighty uproar by people and equally predictably, the uproar appears to be coming from people with scant knowledge of the facts (or a complete lack of interest in the facts). Before looking at the decision of the Court Martial Appeal court, it might be worthwhile recapping, briefly, how we have arrived at this situation.

‘Marine A’ served with the Royal Marines and was deployed to Afghanistan. On 15 September 2011 insurgents attacked a compound that was occupied by the Royal Marines. A helicopter was called in to assist with the fire fight that had ensued. One of the insurgents was located in open ground and the helicopter opened fire on that particular insurgent. A unit was tasked to undertake an assessment of the damage from the battle and that unit was under the command of ‘Marine A’.

Each of the three armed forces in the UK has their own police force – The Royal Military Police (Army), the Royal Navy Police (the Navy) and the Royal Air Force Police (the RAF). About 12 months later the “Military Police” (phrase used in the Court Martial Appeal Court’s judgment) were undertaking an investigation into unrelated matters but found video recordings of the incident in Afghanistan on 15 September 2011. It is understood that in the video footage ‘Marine A’ is heard to admit that he had broken the Geneva Convention when killing an insurgent. That discovery by the RMP resulted in ‘Marine A’ together with others being charged with Murder. The matter was tried before a Court Martial and in November 2013 ‘Marine A’ was convicted of Murder.

The Court Martial is a military court which has its current basis in the Armed Forces Act 2006. It hears cases against service personnel form all three of the services. Proceedings are presided over by a Judge (who is called a “Judge Advocate”) and there is a Board consisting of between three and seven officers and warrant officers (who take the place of the jury); the size of the Board depends upon the seriousness of the charge(s). The Court Martial may try any offence against service law (section 50(1), Armed Forces Act 2006), which includes all criminal offences under the law of England and Wales (see Section 42 of the Armed Forces Act 2006). The Court Martial operates much like the Crown Court (although there are notable differences) and matters of law are determined by the Judge Advocate while matters of fact (including innocence and guilt) are a matter for the Board. Matters are prosecuted before a Court Martial by the Service Prosecuting Authority. The SPA an independent tri-service body which is staffed by qualified lawyers who are drawn on secondment from the Legal Branches of the Army, Navy and RAF (all of whom are commissioned officers in their respective service). The SPA is independent from the chain of command and operates along similar lines to the Crown Prosecution Service. The SPA is under the superintendence of the Attorney General of England and Wales to mark its complete independence from the Chain of Command.

Following upon ‘Marine A’s’ conviction for Murder he unsuccessfully appealed his conviction to the Court Martial Appeal Court. Thereafter an application was made to the Criminal Cases Review Commission which has subsequently made a reference back to the Court Martial Appeal Court. For completeness, the judges who sit in the Court Martial Appeal Court are those set out in Section 2 of the Courts-Martial (Appeals) Act 1968 and include the judges of the Court of Appeal of England and Wales, such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose, and such of the judges of Her Majesty’s Supreme Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.

The Judgment of the Court Martial Appeal Court discloses very limited details about the nature of the appeal before it; however, it would appear that Blackman’s lawyers are arguing that new psychiatric evidence produced renders the conviction for murder unsafe. In terms of a disposal the Appellant is seeking, it is that his conviction for murder be quashed and either substituted with a conviction for Manslaughter or a fresh trial ordered. In essence, the Appellant is not arguing that he is wholly innocent – he is arguing that he was criminally responsible for the death of the insurgent but that his responsibility was diminished and therefore he is guilty of Manslaughter rather than Murder. The Prosecution do not accept this and maintain that the conviction for Murder is the correct conviction.

In short, what we had is a person who served in the armed forces, who was investigated by members of the armed forces, prosecuted by members of the armed forces (acting independently from the Chain of Command) and thereafter convicted of murder by members of the armed forces seeking Bail pending an appeal in which he hopes his conviction for Murder will be substituted with a conviction for manslaughter. When assessing the case of Marine A it is my view that we must do so with that short summary in mind.

In terms of Bail, the prosecution was neutral on the matter. As we know, the Court Martial Appeal Court refused bail. The test for bail, rightly and sensibly, for a person who stands convicted of a crime is entirely different to that of a person who is yet to stand trial. The presumption of innocence does not apply following conviction. The test that the Court Martial Appeal Court applied is set out in Paragraph 18 of its judgment. It is a very high test, as would be expected. It is exactly the same test that would be applied to someone convicted in the Crown Court of Murder who was seeking bail from the Court of Appeal pending an appeal.

The Court Martial Appeal court determined that Marine A’s case did not meet the high test for bail to be granted and so Bail was refused. I’m not an English lawyer and it is English criminal law that is applied by the Armed Forces Act 2006; however, I would have thought that those acting for the Appellant would have advised him on his prospects of success in his application for Bail and I suspect that neither he nor his legal representatives were surprised when Bail was refused.

The Court Martial Appeal Court appears though to be moving at breakneck speed in hearing the appeal. The Criminal Cases Review Commission made the reference earlier this month and the Court is currently looking to have a hearing fixed for January or February 2017. In an attempt to speed matters up the Court has severed the Appellant’s grounds of appeal and will deal initially with the primary ground of appeal (that being the one arising out of the new psychiatric evidence). If the Appellant is successful on that ground the remaining grounds are irrelevant, if he is unsuccessful the Court Martial Appeal Court will hold a further hearing on those grounds of appeal.

While it may have been disappointing for the family, friends and supporters of ‘Marine A’ that his application for Bail was refused; it is important that the decision is seen in its context. Furthermore, even if Marine A is successful in his appeal there is no guarantee that he will be immediately released from prison. If his conviction for Murder is quashed and replaced with one for Manslaughter the sentence will also need to be substituted; it may well be that Marine A will need to serve further time in custody.

Brexit, Article 50 and the Supreme Court

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

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

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

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

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

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

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

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

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

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

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

Court Fees, Access to Justice and Freedom of Information

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

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

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

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

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

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

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

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

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