Category: Scots Law

Pleading data protection claims: A Scottish perspective

June 30th, 2025
Judgments from the Scottish courts in relation to data protection cases are much rarer than they are from other jurisdictions in the United Kingdom, but last week a judgment, from April, was published in relation to an action raised in Lanark Sheriff Court against the Chief Constable of the Police Service of Scotland under sections 167 and 169 of the Data Protection Act 2018 and at common law. The pursuer (Mr Prentice) had raised proceedings against the defender (the Chief Constable) seeking:
- a declarator that the defender had failed to comply with her statutory obligations under section 45(1) and (2) [of the Data Protection Act 2018] to fully and properly respond to subject access requests made on 17 November 2021, 22 February 2022, 31 July 2023 and 11 September 2023.
- a compliance order under section 167 of the Data Protection Act 2018
- damages of £5,000 for damage and distress suffered as a result of the defender’s failure to respond to the pursuer’s subject access requests.
The judgment followed a debate at the instance of the defender who sought to argue that the pursuer’s case was bound to fail and that it should be dismissed. A debate focusses on the pleadings and an action will only be dismissed after debate in circumstances where the pursuer is bound to fail even if they prove all that they offer to prove; it is a relatively high bar to meet. There was mixed success with only the issue of a compliance order being allowed to proceed to proof (for those not familiar with Scots law, a hearing on the merits of the action at which parties lead evidence).

It is a useful case as it considers pleadings in data protection cases from a Scottish perspective where pleadings take on a specific and important role and about which there are many important rules.

Turning first to the issue of declarator, the Sheriff determined that the crave for declarator was incompetent. At paragraph [43] the Sheriff encapsulates the Scots law in relation to declarators, stating:

“As per MacPhail, at Chapter 20 and Walker at Chapter 8, a crave for declarator is one which seeks that a right be declared in favour of the pursuer, or that it declares non-existent what appears to be an existent right. The pursuer must have an interest in the declarator sought, and the court will only grant a declarator in respect of a live, practical issue. It is incompetent to bring an action to have a fact declared which has no legal consequences for the pursuer, or to seek a judicial opinion on an abstract question of law. Similarly, to do so where the right is not challenged, or doubted (Walker at page 105, MacPhail 20.01, Scott v Kate Frame (ibid) paragraph 88).”

The Sheriff continued, at para [44]:

“Crave 1 of the application does not seek a declarator of the rights provided by section 45 of the 2018 Act. What is sought amounts to a finding in fact and law that on specified dates the defender failed to comply with her obligations in terms of that section. That is not a competent declarator. (…) As per Walker, MacPhail and Scott v Kate Frame the court should not make declarators of rights which are not doubted. The existence of section 45 rights, their availability to the pursuer, and the concurrent obligations they impose on the defender are not challenged in this case. What is challenged is the pursuer’s assertion that the defender failed to comply with her obligations.”

Here we have a clear expression from the Sheriff that seeking a declarator from a Scottish court that a controller has failed to comply with their statutory obligations under the Data Protection Act 2018 is incompetent. This is only a first instance decision that is not binding upon any other court in Scotland; however, this doesn’t seem to me to be a controversial position for the Sheriff to have arrived at. The function of a declarator is to declare that someone has a right or that a right that appears to exist does not, in fact, exist. There is, and must be, some practical effect to the pursuer seeking the declarator (such as establishing that they have a particular right or that a right that appears exercisable against them is not, in fact, exercisable against them).

A declarator that a data subject has a right to have their subject access request responded to by the controller would do nothing more than state what the law already clearly provides. Where a data subject has made a subject access request which has not been responded to by the controller (or where the data subject contests some or all of the exemptions applied by the controller when responding to the request), data protection law provides two remedies: firstly, a complaint to the Information Commissioner and secondly, an application to the court for a compliance order. A declarator would do nothing for the pursuer in that it would not, nor could it, force the controller to address any deficiency in their handling of the subject access request.

Turning to the pursuer’s third crave, which was for damages in the sum of £5,000. This was dismissed by the Sheriff on the grounds of a lack of specification. In Scots law, a party is entitled to know the case that they must meet and so sufficient facts must be pled by each party to give the opponent fair notice of their respective cases. At paragraph [53] of his judgment, the Sheriff sets out what was lacking in respect of the pursuer’s averments concerning his claim for damages. The Sheriff states:

“Section 169(5) of the Act defines damages available under the Act as including financial loss and damage not involving financial loss, such as distress. Those heads of claim are identified in the averments but not in a way that provides fair notice. The existence of distress, stress, anxiety, and frustration, are all averred, but no averments are provided as of how, or when, or where, they manifested themselves. The financial loss (styled as “detriment” by the pursuer) is averred to be the instruction of solicitors, however the legal expenses incurred are not specified at all. Neither do the averments as to the purported “disadvantage” suffered during the successful appeal against the revocation of the pursuer’s firearm license explain the loss suffered, if indeed this head of claim is available as per section 169(5) at all.”

It is of note that right at the very end of this paragraph, the Sheriff raises some doubt as to whether some of the “disadvantage” the pursuer had allegedly suffered was something that could be competently claimed in an action under section 169 of the Data Protection Act 2018. However, the Sheriff dismissed the pursuer’s third crave on the basis of a lack of specification, rather than on any question of the competency of the remedy sought. It would seem from the Sheriff’s judgment that despite the Record (the document which brings both parties pleadings together) running to 38 pages there was little in the way of specification in relation to the sum sought for damages. It seems that it was not clear how much of the £5,000 was attributable to financial loss and how much was attributable to non-financial damage such as distress. It also appears, from the terms of the Sheriff’s judgment, that there was nothing about how each head of claim had been calculated (see, for example, the reference to there not being specification of how much the legal fees referred to in the pursuer’s pleadings were).

The defender’s challenge to the averments supporting the second crave (for a compliance order under section 167) was not successful. The defender contended that the 17 November 2021 communication was not a subject access request. The Sheriff was directed to no authority which would enable the court to determine that issue at debate and took the view that the matter was one for proof [46]. More generally, the Sheriff took the view that the pursuer’s case that the exemptions were not properly applied was not bound to fail. At paragraph [51], the Sheriff stated that he “was persuaded that there was sufficient information and circumstances pled pertaining to the subject access requests to allow the court to consider finding in facts that the exemptions were not properly applied.” The Sheriff went on to state, at paragraph [51] that “crave 2 would not necessarily fail if all of the pursuer’s averments pertaining to it were proved.” That is, of course, not to say that the pursuer will surely succeed, only that he is not bound to fail.

In relation to the data protection case, the pursuer appears to have been unrepresented throughout and the Sheriff has addressed the issue of equal treatment at paragraphs [55] – [57] of his judgment under reference to the judgment of the UK Supreme Court in Barton v Wright Hassall LLP and the opinion of the Sheriff Appeal Court in Royal Bank of Scotland PLC v Aslam.

Overall, a rare and interesting data protection judgment emanating from Lanark Sheriff Court. The importance of properly framing pleadings in any civil case in Scotland, including data protection claims, cannot be understated. A poorly drafted data protection case can come unstuck at an early stage and result in a data subject being unable to even attempt to prove their case against the controller.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}
Scotland’s Hate Crime Act…what is it and what isn’t it?

April 15th, 2024

On 1 April 2024, the Hate Crime and Public Order (Scotland) Act 2021 entered into force. To say that there has been controversy in the two weeks since its coming into force would be an understatement. However, what is clear from the public discourse that’s taken place in the run-up to implementation and in the two weeks since it was implemented is that it is a very misunderstood piece of legislation.

Background to the Act

The concept of hate crime is not new in this country. There has been an offence of stirring up racial hatred in Scotland for more than 35 years. An offence of stirring up racial hatred was inserted into the Public Order Act 1936 by the Race Relations Act 1976. It was then re-enacted in the Public Order Act 1986 and has again, insofar as Scotland is concerned (the 1986 Act offence still applying to England and Wales), in the Hate Crime and Public Order (Scotland) Act 2021.

There have been other “hate crime” provisions within Scots law, such as the offence of racially-aggravated harassment within the Criminal Law (Consolidation) (Scotland) Act 1995.

In addition to those offences there have been statutory aggravations, such as a racial aggravation in the Crime and Disorder Act 1998, religious prejudice under the Criminal Justice (Scotland) Act 2003 and disability, transgender identity and sexual orientation in the Offences (Aggravation by Prejudice) (Scotland) Act 2009.

In 2017 Lord Bracadale (a retired judge of the High Court of Justiciary and the Court of Session and also a prosecutor in his career at the Scottish Bar) was appointed by the then Community Safety Minister to carry out an independent review of hate crime legislation in Scotland. Lord Bracadale published his report in 2018 and the Hate Crime and Public Order (Scotland) Act 2021 largely follows the recommendations made by Lord Bracadale (although, not entirely).

What does the Act do?

The Act does a number of things. Firstly, the Act is consolidating legislation. What this means, essentially, is that it has taken all of the existing provisions in relation to “hate crime” and re-enacted them into one place. It is now no longer necessary to look at lots of different pieces of legislation to locate the legislative provisions on “hate crime” insofar as it relates to Scotland (as can be seen above, the provisions that existed prior to the 2021 Act were scattered across a number of different pieces of legislation).

Section 1 of the Act consolidates the provisions concerning offences aggravated by prejudice. However, it does add in a new characteristic which had not previously been covered by the law: age (this was a recommendation made by Lord Bracadale in his report). With that exception, the law in relation to offences aggravated by prejudice did not change on 1 April 2024.

It is important to note that section 1 is not a “standalone provision”; it relates to the aggravation of an offence. In other words, for it to apply there must first have been an offence committed. So, for example, if someone assaulted another person because of their religious affiliation (or perceived religious affiliation) then that person could be charged with an assault and the summary complaint or indictment could also contain an aggravation of religious prejudice. This means that, in this example, if the finder of fact (a Summary Sheriff or Sheriff in the case of a summary complaint or a jury in the case of an indictment) decides that the accused assaulted the complainer they would then need to consider whether the assault was aggravated by religious prejudice. Unlike the assault, the aggravation does not need to be corroborated (in other words the evidence of one witness would be sufficient to enable them to find the aggravation proved); this is not a change in the law either: an aggravation did not need corroboration before 1 April 2024 either.

If the finder of fact found that the assault was aggravated, section 2 of the Act means that the offence must be treated more seriously by the courts: in other words, the court is required to impose a harsher sentence on the accused than would be justified if the assault had not been aggravated by prejudice. If the finder of fact decided that the assault had not happened, then the aggravation also falls away: the aggravation cannot exist without the offence (but the offence can exist without the aggravation).

The aggravations do not just apply to an assault. In theory any offence could be aggravated by prejudice by reference to one of the characteristics listed in section 1. It could be murder, a breach of the peace or the crime of threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

Section 3 re-enacts the offence that used to be in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 of racially-aggravated harassment.

Section 4 is where there has been the most controversy. Section 4 deals with the “stirring up” offences. Section 4 contains, in effect, two separate offences. The first re-enacts the decades old provisions in relation to stirring up racial hatred. This relates to situations where someone acts in a manner, or communicates material to another person, which a reasonable person would consider to be threatening, abusive or insulting and (i) in doing so the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins OR (ii) a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

The other offence created is stirring up hatred on the grounds of the characteristics of age, disability, religion (or, in the case of a social or cultural group, perceived religious affiliation), sexual orientation, transgender identity or variations in sex characteristics. This is new in Scotland (England and Wales, they do have a stirring up offence in relation to religion and sexual orientation in the Public Order Act 1986). The offence is essentially the same as the religious hatred one, but in relation to the other characteristics “insulting” does not appear – only “threatening or abusive.” The offences are not about causing offence, or being rude or anything like that. The conduct in question has to be more than that; it has to be likely to cause the reasonable person to suffer fear or alarm. The police and courts in Scotland are very much used to dealing with the concept of “threatening or abusive” behaviour given there is an offence of threatening or abusive behaviour”.

However, for the this offence to be committed, it has to go further than merely being threatening or abusive. The accused has to intend stir up hatred against a group of persons by reference to the characteristic of age, disability, religion, sexual orientation, transgender identity or variations in sex characteristics. That being said, behaviour which as merely threatening or abusive and was motivated by prejudice on the grounds of age, disability, race, religion, sexual orientation, transgender identity or variations in sex characteristics a person could be prosecuted for threatening or abusive behaviour under the Criminal Justice and Licensing (Scotland) Act 2010 with the appropriate aggravation under section 1 of the Hate Crime and Public Order (Scotland) Act 2021.

What about free speech?

Article 10 of the European Convention on Human Rights guarantees freedom of expression, including the right to hold opinions and to impart information and ideas. However, it is not an absolute right. It is recognised in the Convention that there may require to be limits on free speech when balancing against other legitimate interests. For example, defamation laws are a restriction on free speech, but it is right and proper that people are able to seek recourse when they have been defamed. There were also already existed restrictions on free speech in the criminal law prior to 1 April 2024: the offence of stirring up racial hatred is, as pointed out earlier in this post, one that has existed for a long time. The offence of threatening or abusive behaviour in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 can be a restriction on free speech if it relates to things that are spoken or written. A breach of the peace can be a restriction on free speech if it relates to things that are written or spoken. Those are just a few examples, there are others.

There are specific protections within the Hate Crime and Public Order (Scotland) Act 2021 in relation to free speech. Section 9 of the Act sets out certain protections. Furthermore, the police, the Procurator Fiscal, the Lord Advocate and courts are all public authorities for the purposes of the Human Rights Act 1998 and cannot act incompatibly with people’s “convention rights” (being the rights from the European Convention on Human Rights listed within the Human Rights Act 1998). In exercising their powers and authority, each has to ensure that they are acting compatibly with, amongst other things, a person’s right to freedom of expression (and, indeed, their (qualified) right to respect for their private and family life).

What is missing?

It has been suggested that the non-inclusion of sex as one of the characteristics, particularly in relation to stirring up offence, is an omission on the part of the Scottish Parliament.

Lord Bracadale recommended in his report that sex be included, but the Scottish Government, when framing the Bill that became the Act, decided not to include it. That is a policy decision for which they are accountable and whether they were right to take that decision or not is not something that I am going to comment on in this post – it would be opinion rather than analysis of the statute. However, it is worth noting that the Scottish Government has said it is looking at the issue and that section 12 of the 2021 confers a power on the Scottish Ministers to add sex into the Act by way of regulations (so, if the Scottish Government were to decide to add sex in, it could be done relatively quickly without having to pass a new Act).

Is the Act unclear?

Another criticism that has been made of the Act is that it is unclear or vague in some sense. Those criticisms are, again, in my opinion, unfounded. All of the provisions within the Act either already existed within Scots law and have been applied time and again by police, prosecutors and the courts or build upon those provisions which have existed in the law for a long time.

Conclusion

In short, there has been a lot of controversy surrounding the Act. Much of it has been ill-informed (not helped by pronouncements made by Ministers and the police in the run-up to the Act coming into force which did not reflect the wording of the Statute). Little of the controversy has any sound basis in the text of the Act (the words used in the statute are what matter; those words and their meaning cannot be changed by way of statements made by Ministers or police officers – no matter how senior). Being offensive, even deliberately so, is not likely to result in a charge under the 2021 Act. However, if conduct were to be threatening or abusive then this may amount to an offence under other legislation.

A lot of what is contained within the Hate Crime and Public Order Act 2021 is not new, and the bits that are new are, essentially, extensions of what already existed. Those new bits are also based upon recommendations made following an independent review of the law in this area.

It is highly likely that the effects of the Act have been considerably overstated and that, in fact, the numbers of people caught by the 2021 Act will not be much greater than under the laws that went before it (although, recognition has to be given to the bits that are actually new and the likely effect that might have overall on the number of people caught by the 2021 Act). Holding and expressing, for example, gender critical beliefs would not, on its own, pass the criminal threshold. The conduct would have to go further: it would have to go into the realm of being likely to cause the reasonable person (that is, the ordinary man or woman on the street) fear or alarm. Referring to a trans man as a woman or a trans woman as a man, on its own, would not cross the threshold; again, something more would be required. Whether the behaviour is threatening or abusive is an objective test, not a subjective one. While the feelings of the complainer may be relevant, they are not determinative. What matters is whether the conduct would be likely to cause the reasonable person fear or alarm.

Disclaimer: This post is for information purposes only and nothing in it should be taken as constituting legal advice.
#Indyref2: You’ve (not) got the power (or do you?)

February 5th, 2021
The Opinion of Lady Carmichael was published today in the case brought by Martin James Keatings against the Advocate General for Scotland and the Lord Advocate in which he was seeking a declarator from the Court of Session that:
1. the Scottish Parliament has power under the provisions of the Scotland Act 1998 to legislate for the holding of a referendum on whether Scotland should be an independent country, without requiring the consent of the United Kingdom Government or any further amendment, by the Union Parliament, of the Scotland Act 1998 as it stands and
2. that the Scottish Government’s proposed Act of the Scottish Parliament concerning an independence referendum contains no provision which, if passed by the Parliament, would be outside its legislative competence.
The issues before Lady Carmichael were essentially preliminary ones. To explain, in legal proceedings in Scotland parties can seek to “short-circuit” the process in certain circumstances by taking what are known as “preliminary pleas”; these can be designed to do a number of things, but are usually about either having the case resolved in its entirety without enquiry into the merits or to restrict the scope of the matters upon which evidence will be heard at a proof (for example, by preventing matters which are irrelevant from being probed at proof).

In this case the pursuer, first defender (the Advocate General for Scotland) and the second defender (the Lord Advocate) all had preliminary pleas. The pursuer was seeking decree de plano; essentially, the pursuer was arguing that the case could be resolved in his favour without the need for evidence to be heard at a proof. Meanwhile the first and second defenders had a number of preliminary pleas which overlapped to a great extent, but which were essentially that the pursuer lacked title, interest and standing to bring the case and secondly that even if he did have title, interest and standing to bring the case it was hypothetical, academic and premature. It was also argued that the case was incompetent because it sought to argue that the court did not have the power to grant the declarator sought because there was a legislative process set out in the Scotland Act 1998 (section 33 thereof). The Lord Advocate also sought to argue that the case was really an application to the supervisory jurisdiction of the Court of Session (that is, a judicial review).

In other words the two days or argument heard last month formed part of a debate on the parties’ respective preliminary pleas. This may seem dry and technical, but it is important, in my view, to understanding what Lady Carmichael decided and why.

The decision

The decision is ultimately given at paragraph 139 of the Opinion. That is that the action was hypothetical, academic and premature. In any event, the pursuer lacked standing to being it.

Court’s jurisdiction

Lady Carmichael’s decision deals first with the court’s jurisdiction (starting at para 90). This question was in essence whether the case was really an application to the supervisory jurisdiction and, if so, what was the effect of that (given that it was not brought using the procedures set out in the court’s rules for such cases). Very early on, at paragraph 90, Lady Carmichael tells us her view on this where she says that she does “not accept the second defender’s analysis that in seeking the declarators that he does, the pursuer in substance invokes the supervisory jurisdiction.”

The supervisory jurisdiction of the court can be invoked in the event that the Scottish Parliament acts outside of its legislative competence (this has happened many times, such as in Axa General Insurance Limited and others v Lord Advocate; Imperial Tobacco Limited v The Lord Advocate and The Christian Institute and others v The Lord Advocate). In this case, however, there was no allegation that the Scottish Parliament had exceeded its powers; there was no order being sought to reduce an Act of the Scottish Parliament or to require performance in relation to an omission. In essence, the pursuer was seeking the advice of the court as to the extent of the Scottish Parliament’s powers. However, the proceedings were “not applications to the supervisory jurisdiction.” (para 95).

Lady Carmichael also observed that even if they had been proceedings that were properly seeking the court to exercise its supervisory jurisdiction she would have been “reluctant to dispose of [the] proceedings (…) simply on the basis that they had been raised using the wring procedure.” (para 97) This was because, in essence, the means of disposing of a case that had been brought using the wrong procedure would not necessarily be to dismiss the proceedings, but rather it is likely that the court’s disposal would be to exercise its powers under the court’s rules to order that the case should proceed as a judicial review (para 99). Lady Carmicahel did not seem impressed with the second defender’s arguments in this regard pointing out that this sort of preliminary plea (i.e. one seeking dismissal on the grounds of incompetence where a mechanism existed to have the case assigned to the correct procedure) was of the kind which had been “deprecated” in a previous decision (para 101).

In essence, had it been the case that the matter should have proceeded by way of judicial review; the second defender should have (as it appears he had previously contemplated) made the appropriate motion at an earlier stage of the proceedings to have the action dealt with as a judicial review.

Does section 33 of the Scotland Act 1998 exclude the pursuer from bringing the action?

On this point, raised by the defenders, Lad Carmicahel considers that it was unnecessary to decide this point, but expressed the view that she doubted that it was true.

Was the action hypothetical, premature and academic and did the pursuer have standing?

At paragraph 103 of her Opinion, Lady Carmicahel notes that “consideration by a court of proposed legislation will normally be hypothetical and premature at any point before it is in its final form and has been passed by Parliament.” This is essentially because there is a range of things that can happen with a Bill as it proceeds through the parliamentary process: it could fail, it could be amended to bring it within competence and it could even be amended to take it outwith competence.

The pursuer contended that the decision in Wightman v Secretary of State for Exiting the European Union (which was the case that concerned whether the United Kingdom had the unilateral power to revoke its notice of its intention to leave the EU) meant that he had title, interest and standing to bring the present case. The pursuer’s argument here was essentially that a vote (a general election to the Scottish Parliament) was going to take place at which there would be before the electorate a promise to hold a referendum on independence whether the UK Government agreed or not. The pursuer argued that it was therefore necessary for the court to answer this question so that voters could make an informed decision. This, the pursuer said, was the same as the situation before the court in Wightman.

The defenders contended that only those with statutory functions under the Scotland Act 1998 (i.e. the Advocate General for Scotland, the Lord Advocate and the Attorney General) could ever have sufficient interest to bring a question to the court pertaining to the lawfulness of a proposed Act of the Scottish Parliament prior to the legislation having been granted Royal Assent. Lady Carmichael concluded (at para 126) that she did not need to answer this question, but doubted the correctness of the defenders’ position.

Lady Carmicahel also concluded (at para 128) that she did not need to reach a view on what intentions the Scottish Government had in respect of any draft bill. Lady Carmichael considered that this would not be determinative of whether there existed an issue of law on which the purser was entitled to a declarator from the court (para 128). The question for the court, in respect of the preliminary issues before it, was whether the court should provide an answer to the questions posed by the pursuer and not what the answers to those questions were (para 128).

Lady Carmicahel records that the pursuer advanced six reasons was to why the court was obliged to make the declarator, or declarators, sought. These are set out in paragraph 129 of Lady Carmichael’s Opinion. In respect of the first two, Lady Carmicahel concluded that they were “plainly raised prematurely”, were “hypothetical, and may never come to pass” (para 130). Lady Carmicahel noted that “answers provided by the court now, whether in the abstract, or on the basis of a draft bill, would not serve to avoid the difficulties apprehended by the pursuer” (para 130). Other remedies were available; any bill passed could be referred by one or more law officers to the Supreme Court, but even if it were not the act could be judicially reviewed and all of this could be achieved before any referendum was conducted under the authority of the legislation in question (para 130).

Adjudicating an on the lawfulness of proposed legislation before it is passed by the Scottish Parliament would be “premature and pointless” because it could be changed by amendments in Parliament before it is passed (para 131).

In respect of the case of Wightman, Lady Carmichael observed the discriminating approach adopted by the First Division of the Inner House in respect of whether the petitioners in that case had sufficient interest. The Division was only satisfied as to the sufficient interest in respect of the sole petitioner who was a MP and who would have had to participate in an inevitable vote (para 133). In Wightman, the votes of MPs would have directly determined “a matter of importance to every citizen of the United Kingdom” (para 133) and were voting in relation to a single issue (also at para 133). This was contrary to the position in a general election where the votes case by individuals are influenced by a range of different matters (para 137).

Lady Carmicahel also observed that “the ability to campaign politically or lobby for a desired result does not necessarily depend on information as to whether or not that result can be achieved with a change in he existing law” (para 135). Lady Carmicahel stated that “there is not the close relationship between the right to campaign and the advice sought that there was between the vote in which the MPs in Wightman were to be engaged and the advice that they sought” (para 135).

There is a difference between voters electing individuals to sit in Parliament and the votes undertaken by elected members in parliament. The pursuer sought to characterise the voters as the decision-makers as to whether legislation would be introduced, promoted and passed; however, Lady Carmichael did not accept that as being correct (para 136).

Lady Carmichael observed that it’s “important, that matters which may properly be the subject of political debate and campaigning in the democratic process are permitted to unfold and be worked out in the political process, and that the courts intervene only when they need to do so to fulfil their function as guardians of the rule of law” (para 141).

For the reasons set out in her Opinion, Lady Carmichael dismissed the pursuer’s action and observed that it was unnecessary and inappropriate for her to express an opinion on the question of law the pursuer sought an answer to (para 142).

Comment

Lady Carmichael’s decision is pretty lengthy and deals with a lot of issues that people only concerned with the answer to the main question will not be interested in.

I think it’s important to note a couple of things in respect of this case. Firstly, although it sought a decision on whether the Scottish Parliament could legislate for a referendum on independence, that question has not been answered. Indeed, Lady Carmichael expressed no view at all on the question. The result should not be read as agreeing with one side or the other on the answer to that question. In essence, if the courts are to answer that question it should be, in the opinion of Lady Carmichael, done once the legislation has been placed into its final form and passed by the Scottish Parliament.

There would be nothing at all stopping any member of the Scottish Parliament introducing legislation for a referendum on independence and the parliament then debating that legislation, amending it and passing it. The question would then be, if it was referred to the Supreme Court, whether the Scottish Parliament would have legislative competence at the point the bill is granted Royal Assent (Reference by the Attorney General and Advocate General for Scotland in respect of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, para 90); or whether the Scottish Parliament had legislative competence at the point of Royal Assent in the event of a challenge by way of judicial review after the fact.

The matter therefore remains undecided (as do other matters, such as whether section 33 does or does not exclude challenges pre-Royal Assent by persons other than the law officers referred to in that section). The pursuer has already indicated an intention to reclaim (appeal) the decision of Lady Carmichael to the Inner House of the Court of Session. In terms of the court’s rules he has 21 days in which to do so. It therefore seems that this is not the last word on this particular action and it’s certainly not the last word on the question of legislative competence.
Civil Legal Aid in Scotland: a vital system that is struggling

August 24th, 2020

A recent open letter to the Scottish Legal Aid Board and the Law Society of Scotland’s Legal Aid Committee highlights the very real problem with civil legal aid in Scotland. The open letter concerned the fees paid by SLAB for work undertaken by the firm in a case before the UK Supreme Court. The case concerned the position of siblings in the Children’s hearing system and whether they should have the designation of a “relevant person”. In the end, the Supreme Court decided that they should not have the formal designation of a “relevant person”, but highlighted the importance of their involvement in the proceedings. That is just by way of background; what the solicitors complained of was the fee paid to them by the Scottish Legal Aid Board. They wrote that their fee was abated to just over £3,000. That may sound like a lot, but it is not at all for all of the work that would have went into preparing for a case in the Supreme Court which was heard over a period of two days.

Solicitors have been complaining about legal aid payments for a long time. Most of the recent public complaints have related to the criminal legal aid system; however, many of the same issues exist in the civil legal aid system as well.

Most civil litigation in Scotland takes place in the Sheriff Court; where solicitors typically do all of the work without the involvement of Counsel (although in more complex cases sanction can be sought to involve Counsel). In most civil cases the fees that solicitors receive are “block fees”; that is, a fee is payable for certain work no matter how long it takes. Each block of work is assigned a number of “units” and then there is a unit fee. The fee is calculated on the basis of units x unit fee. The current unit fee, applicable from April 2019, is £21.63. This unit fee was first set in 2003 at the rate of £19 per unit. So in the space of 17 years the unit fee has risen by £2.63 (or 13.84%). Averaging out the 13.84% increase over the past 17 years it gives an average of 0.84% per year (this is artificial because there hasn’t been an annual increase).

Inflation has been running considerably higher than 0.84% every year since 2003; using the Bank of England’s inflation calculator, £19 in 2003 would be worth about £30.27 in 2019 (the latest year that this calculator will allow you to calculate for). Again, it’s a rough estimation as it averages out inflation across the period. The calculator has worked it out on the basis of an average inflation rate of 3% per year.

What this shows us is that there has been a year-on-year real terms cut in the unit price paid by SLAB to solicitors for work undertaken; and a considerable one at that. Now, it would be fair to take account of the significant reductions in public spending that have occurred since 2010. However, assuming that the unit price had increased every year in line with average inflation between 2003 and 2010; and thereafter been a frozen until the 3% increase in 2019, the unit price would be in the region of (again, using the Bank of England’s inflation calculator) £24.13 today; higher than the £21.63 that it currently is (there is roughly an 11.5% difference).

Why should non-lawyers care about this? This cuts to the heart of our democracy. One of the central tenants of democracy is the rule of law; that doesn’t just apply between citizens and the state, but also between individuals and businesses. Without the ability to enforce rights (whether they be statutory rights or rights created by contract) they may as well not exist. Moreover, it is a disincentive to honour rights if you know that the other person is not going to be able to enforce those rights.

The reality is that more and more solicitors are withdrawing from providing legal aid services. They cannot afford to provide them. Lawyers typically to have an altruistic streak to their personality, but equally law firms are businesses and they need to make a profit. If law firms are not making a profit on their legal aid work then their privately paying work is having to subsidies that; it reaches a point where it becomes so uneconomical that firms either stop offering legal aid services altogether or they cannot continue to trade and close their doors (especially where the majority of their work comes from legal aid cases). This harms the rule of law; it makes it harder for people to find solicitors who can act for them if they’re unable to pay privately. The current concept of legal aid came into existence alongside other key aspects of our welfare system; it is a fundamental part of our welfare system.

There are some firms that make a considerable amount of money from the legal aid system. The annual report from SLAB shows what every single firm has been paid from the fund each year. However, there are a few things that those figures don’t reveal. Firstly, in the case of civil legal aid, firms are only paid at the conclusion of the case (although there have been some temporary changes made via the Coronavirus legislation allowing interim payments to be made; but this is temporary and does not reflect the usual position). Civil cases can last years; meaning these figures will inevitably include work that has been done in previous years. Civil cases lasting years has nothing to do with solicitors seeking to increase the fees that they get; that’s just not how it works. The delays often arise out of issues elsewhere in the system. Moreover, as indicated, most Sheriff Court work is paid on a block fee basis rather than an hourly basis; therefore, there is often no incentive at all for solicitors to “spin” things out to increase fees.

What should also be remembered is that these are payments to a business; like any other business. From those fees, the firms require to pay overheads. Every business has to pay overheads, but it is a factor that should not be overlooked when assessing how generous legal aid payments are: the overheads for running a solicitors firm are high. Many of these overheads relate to the highly regulated environment in which we (rightly) operate.

Finally, the firms making the most from legal aid will be doing “bulk work”; it probably accounts for the majority of the firm’s workload. The average cost to the taxpayer per case has fallen; so these large payments will also be coming from a large number of cases.

Our private rates significantly outstrip the amount we’re paid for legal aid. However, generally speaking the profession is not asking to be able to bill the taxpayer what we bill our privately paying clients. We recognise that the rates paid out of taxpayers’ money will be less; however, what we need is a system where the rates are increased more than a handful of times in the best part of 20 years. The system cannot continue to sustain the real term cuts of that it has seen historically. The system provides good value for money: our accounts are closely scrutinised and we need to justify every single charge to SLAB. Practitioners offering legal aid services are regularly subjected to “peer review” process; which looks at whether we’re complying with the technical requirements as well as the level of service being offered to the client. The peer review process is far from a box ticking exercise; our peers are tough but fair – if the standard of service offered is not up to scratch then we’re re-assessed and ultimately we can be stopped from providing legal aid if we fail to meet the standards.

The Scottish Government commissioned an independent review of the legal aid system in Scotland; it has reported and made many good recommendations about how to reform the system for the benefit of the public. On fees it concluded that it had seen insufficient evidence to support a general increase in fees; a conclusion that was criticised (and ultimately ignored, to some extent, by the Scottish Government who provided a general increase in 2019 anyway). The Scottish Government also established the “Legal Aid Payment Advisory Panel”; its work can be seen on the Scottish Government website. After the election next year, whoever forms the Scottish Government should prioritise taking forward the recommendations and conclusions of the review and the advisory panel.

Legal aid is a vital service and it is worth fighting for; politicians know that there are no votes in legal aid and so do not treat it with the priority that it deserves. In some respects the system in Scotland is in a much better place than the system in place in England and Wales; the Scottish Government hasn’t removed whole areas of the law from the scope of the civil legal aid system in the way that the UK Government has in England and Wales. However, that is not an excuse for refusing to deal with the issues in the system that exists here in Scotland (and those go beyond just the rates of pay) – this is an area within devolved competence; “at least we’re better than England” shouldn’t be an answer to criticism on any area of devolved responsibility – and legal aid should be no exception to that general proposition. Don’t let the Scottish Government dwindle the system away: it’s part of the safety net that exists and you never know when you may need it.
The lockdown and public protest

June 5th, 2020

On 25^th May 2020 the world was shown a video of a 46-year-old black man, George Floyd, being restrained on the ground by a number of police officers in Minneapolis. That video showed one police officer kneeling on the back of his neck for almost nine minutes. Mr Floyd died and the police officers involved have been charged with a range of offences, including one officer being charged with murder. The footage has rightly caused anger around the world. This anger has resulted in riots happening in various places around the United States of America and protests have been held around the world in support of the Black Lives Matter campaign. Protests have been planned for the forthcoming weekend in Scotland.

The first half of 2020 has seen governments across the world try to deal with COVID-19, a novel coronavirus first seen in the Wuhan province of China in late 2019. Figures available at the current time place COVID-19 as the leading cause of death globally in 2020 so far. Governments throughout the world have been responding to the virus by placing varying degrees of restrictions on those who live within their jurisdiction in an effort to try and contain the virus. Whether these restrictions are the best way to go about achieving this aim is something that has been debated since the restrictions started to come in, but this post is not going to consider that question. What this blog post aims to do is consider how the right of assembly in Article 11 of the ECHR interacts with the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the lockdown regulations”).

The lockdown regulations were made by Scottish Ministers on 26^th March 2020 under powers conferred upon them by the Coronavirus Act 2020; they came into effect immediately. The Scottish Government has also published guidance on the lockdown and I have considered the interaction between the law and the guidance before (mainly in the context of the powers of the police and the approach to policing adopted in some parts of the United Kingdom). The lockdown regulations are what is known in law as “subordinate legislation”; that is, they are laws that have been made not by Parliament itself, but by government ministers exercising powers delegated to them by Parliament; in this case, it is power delegated to Scottish Ministers by the United Kingdom Parliament. When ministers are making subordinate legislation they cannot exceed the authority given to them by parliament. That is to say, if subordinate legislation made by Ministers includes something which Parliament has not given them the power to do then the courts can strike down the subordinate legislation to the extent that it exceeds Ministers powers (i.e. it is outside the Minister’s competence)

In Scotland, under section 57(2) of the Scotland Act 1998, Scottish Ministers do not have the power to make any subordinate legislation where it is incompatible with the rights under the European Convention on Human Rights (i.e. those rights listed in Schedule 1 to the Human Rights Act 1998). That includes both the right to freedom of expression (Article 10) and the right to freedom of assembly (Article 11). The lockdown regulations therefore always have to be read in a way that is compatible with the convention rights and where they cannot be read in compatibly with them, they will be outwith the competence of Scottish Minisers and “not law”.

Regulation 6 of the lockdown Regulations prohibits all gatherings in a public place of more than two people except in a list of specific circumstances. None of which would reasonably apply to a public protest. It is an offence to fail to comply with Regulation 6; however, Regulation 8(4) of the lockdown regulations provides a defence to an infringement of a Regulation 6 where the person has a “reasonable excuse”. Most will, by now, be familiar with the “reasonable excuse” provisions, but mainly in connection with Regulation 5, which provides that no person may leave the place that they are living except with a reasonable excuse. In respect of a public protest there are two parts of the lockdown regulations in play: there is Regulation 5, which comes into play when a participant leaves the place that they are living and then there is Regulation 6, when the arrive at the place where the protest is to take place.

In this post, I am only going to focus on the relationship between Regulation 6 and Article 11. That is because, if the protest would be lawful under Regulation 6 then it would follow that a person leaving the place where they live to attend the protest would be a reasonable excuse. To say otherwise, would be an absurd reading of Regulation 5 in the context of the lockdown regulations as a whole.

Article 11

This Article provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others. However, as with nearly all of the convention rights it is not an absolute right and can be subject to restrictions which are “prescribed by law” (for example Regulation 6 of the lockdown regulations) and which are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

The European Court of Human Rights has held that the exceptions in Article 11 are to be construed strictly and that only convincing and compelling reasons can justify restrictions. The restrictions must be in the pursuance of a legitimate aim and must be proportionate to that aim. The government has to be able to show a rational connection between the restrictions and the legitimate aim being pursued.

The lockdown regulations have been made for a specific purpose, which is set out in the preamble to the lockdown regulations which states that they have been “made in response to the serious and imminent threat to public health which is posed by the incidence and spread of coronavirus in Scotland.”

The Government has been clear throughout that large public gatherings of people pose a particular risk in respect of the spread of coronavirus. However, there are a number of things that need to be consider. Is the complete ban on public gatherings as included in Regulation 6 proportionate to the legitimate aim being pursued? Is there a less severe restriction that could be placed upon people? Also, there is, I would suggest, a difference between indoor and outdoor gatherings (indeed, the Government’s own guidance draws that distinction on meeting family members). Another relevant factor, I would suggest, is that a public protest is different in nature to a gathering for a football match or a music concert.

I have previously expressed concern that the apparent complete ban on public protest is something that is unlikely to be compatible with the convention rights, even in the current circumstances. For example, a protest which takes place in a large open space where everyone is staying at least 2m away from people who are not members of their own household and where appropriate face coverings and other protective clothing (such as gloves) are being worn may well present a difficulty for the Government. That is not to say that it would be impossible for the Government not to show that banning such a protest is a proportionate means of meeting their legitimate aim; only, that it will be considerably more difficult than, say, defending the ban as it relates to sports fixtures. However, on balance, there is, I think, a strong basis for suggesting that the Government would ultimately be successful in defending the current position if it was forced to, but in doing so it would be facing a reasonably strong argument that its actions were unlawful.

The subject-matter of the protest also has, I think, to play a part in the balancing exercise as well. Is it a protest that could reasonably be delayed to a point where the restrictions are less stringent than they are now or would the effectiveness of the protest be undermined if it were to be delayed? Clearly, the black lives matter campaign is front and centre in the global news cycle at the moment and that is, I think, a factor which would need to be weighed into the consideration. However, equally, the campaign is one that has (sadly) been going on for a very long time and is almost certainly going to need to continue beyond now. It is a depressing reality that there continues to exist in our world a significant degree of racism and racial prejudice. On balance, I’m not convinced that an urgency argument would necessarily tilt the balance against the government.

It may also be worth noting that the High Court in England and Wales refused interim injunctive relief in a judicial review in a challenge brought to the English equivalent provisions and brought with the aim of enabling a mosque to open for Friday prayers at the end of Ramadan. That case was concerned with Article 9 (freedom of thought, conscience and religion), but it is worth of note. In that case Mr Justice Swift did not think that “there [was] any realistic likelihood that the Claimant’s case on Article 9 will succeed at trial”. There are, of course, important difference between the cases: (1) the concern different convention rights; and (2) the circumstances are quite different – one concerns indoor gatherings while the present context is concerned with outdoor gatherings. Furthermore, it deals with different (albeit substantially similar) statutory provisions, but with the same underlying reasoning. Despite his findings, the judge granted permission for the judicial review to proceed. There are a number of challenges in England and Wales to the lawfulness of the lockdown generally, or to particular sets of circumstances. Some, on a first appearance, are stronger than others.

Reasonable Excuse

One other matter that should be mentioned is the “reasonable excuse” defence to a charge of breaching Regulation 6. Regulation 8(5) provides the non-exhaustive list of reasonable excuses that we have all become very familiar with over the past weeks. None of the examples listed would cover a public protest; however, it is not a complete list. It would be open to argue that a public demonstration on a matter of public interest is something that falls within a “reasonable excuse”. Whether the court would accept that it was a reasonable excuse standing the reasons behind it is another question altogether. I’m not convinced that a court would find the protest as a reasonable excuse to be in a gathering of more than two people outside of the circumstances provided for in Regulation 6.

Conclusion

I am not going to say that the protests definitely are legal or illegal; that is not something that can be said with complete certainty and would, ultimately, be a matter for the courts to determine. However, while I have some concerns that a complete blanket ban on all public protests might not be convention compliant, the court is only going to be concerned with whether restricting the protest concerned was or was not a breach of convention rights. On balance, however, I think it likely that the protest would be a breach of Regulation 6 and that the interference with the Article 11 rights would be considered a proportionate means of pursuing the legitimate aim of reducing the spread of COVID-19 and that it is rationally connected to that aim. It is not the job of the courts to decide on policy, only whether the policy is lawful. There may be alternative ways of achieving that aim and the court may, if it were the decision maker, have favoured one of those other ways; however, that is not the test. If the policy decision is lawful, then the existence of another decision that the court would have preferred is irrelevant. I may, of course, be wrong on both of these matters. The issues are complex: the right to freedom of assembly is a vitally important right in a democracy, but the circumstances in which we find ourselves are truly extraordinary.

I am not going to say whether people should or should not participate in a protest this weekend. That is a matter for them. If people do attend a protest in Scotland this weekend they need to consider that doing in doing so it is likely that the will be committing a criminal offence. Equally there may be a defence to that offence or grounds to challenge the lawfulness of the regulations in terms of their compatibility with convention rights. There are processes for dealing with such arguments should anyone ultimately be prosecuted and wish to take the argument. However, they should also consider that there is no guarantee, or even a strong prospect, of those defences or challenges succeeding. I cannot, as a solicitor, encourage people to break the law.

The Scottish police have, generally speaking, handled the policing of the lockdown far better than their colleagues in other parts of the United Kingdom. What action they will take is, of course, something for them to consider. Whether they would try to breakup a protest that was peaceful, socially distanced and in which the participants were taking all reasonable precautions not to spread the virus is something that I wouldn’t like to express a view on, but I would hope that they would approach the situation proportionally taking into account that the issues are very different to, for example, the gatherings that were seen last weekend around Scotland. The Chief Constable indicated today at the Scottish Governments briefing that Police Scotland had been working with some of those involved in the protests this weekend; I would encourage (for what it is worth) anyone organising a protest to engage constructively with Police Scotland. I would also encourage anyone who attends a protest to approach any engagement that they have with the police (whether that be Police Scotland or the British Transport Police) in a courteous and constructive manner.

It is not just the protest itself that needs to be considered, but how people are getting there. The use of public transport and people travelling from some distance away to attend the protest is all something that needs to be factored in. An increased number of people using public transport to get to the protest is likely to increase the risk to those who work on the transport system and also to those who are using the transport system to get to work that they cannot do from home (in particular, NHS staff). People travelling from far and wide also, one would assume, comes with risk of them becoming carriers of the virus which could result in increased numbers of infections throughout the country. These are considerations that should not, in my view, simply be dismissed or minimised. They are very real concerns. The basis of the government’s restrictions on gatherings is to limit as much as possible contact which is likely to enable the virus to spread within the community.

Finally, none of the above should be taken as formal legal advice. It is not intended as such; it is merely a consideration of some of the issues that arise. If I were to write a full appraisal of the matter, fully referenced with authority, this post would be far longer than it already is. This blog post has gone through several iterations and when I started to write it I did so with no clear idea where it would end up; such are the complexity of the issues at hand.
Coronavirus and the law: divergence between Scotland and England

May 13th, 2020

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.
Litigation, Privilege and Subject Access

February 18th, 2017

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

January 17th, 2017

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).
Court Fees, Access to Justice and Freedom of Information

November 23rd, 2016

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

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

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

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

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

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

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

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

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

June 26th, 2016

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

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

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

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

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

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

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

Category: Scots Law

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