Jonathan Mitchell QC

This is a written version of my talk to the Scottish Public Law Group annual conference on 7 June 2010. A note on vocabulary; I take the word ‘standing’ from English law to wrap up both title and interest to sue; and ‘locus standi’ is simply the Latin for standing.

Standing in Public Law Cases

It is a truth almost universally acknowledged that the Scottish law of title and interest to sue in public law matters is over-restrictive and in need of reform. It seems to me, indeed, that this area of law is obsolete and unfit for purpose; that is simply a polite way of saying that it is in a mess. There is not universal agreement on this: the few who seem to think that our rules of standing are actually adequate seem for the most part to be members of the College of Justice. Yet it is that group who are responsible for the law being in the state it is in.

I wish to put, and answer, three questions as to this teenager’s-bedroom-like mess:

• How did things get into this state?
• What is hidden underneath the debris?
• How can it get cleaned up?

Continue Reading »

At long last, the Scottish Legal Aid Board and the Scottish Government have promulgated regulations for legal aid in the unified tribunal system. There’s plenty of evidence that legal representation makes a substantial difference to success rates in the tribunals, so this is welcome, although the effect of the regulations is patchy. This post gives a brief description of the proposed scheme and its background. There will be fuller discussion at this conference on 14 June.
Continue Reading »

The Equal Opportunities Committee of the Scottish Parliament is carrying out an inquiry into migration and trafficking in Scotland. Giving evidence to its meeting of 18 May, the Ethnic Minorities Law Centre said “We are aware that it is extremely difficult for those that are trafficked to come forward to get legal advice regarding their position, given their vulnerability, fear and concerns for their own and, sometimes family member’s, safety … Continue Reading »

The Scottish Public Law Group’s annual conference for 2010 will be held on Monday 7 June at the Playfair Library in Old College, Edinburgh University. The full programme is available here. This will be fully booked so get your place quick.

I’m speaking in the supposed graveyard slot after lunch on the problems of title and interest in public law challenges, something which has interested me since I argued it many years ago in Age Concern Scotland, 1987 SLT 179. The Civil Courts Review last year recommended reform of our ancient and restrictive rules: volume 2, Chapter 12, paragraphs 13 to 25. I have doubts whether its suggested solution really deals with the problems. Continue Reading »

In what seems to be an odd coincidence, there were two apparently unrelated developments this month concerning the systemic problem of delay in civil appeals in the Inner House: one in Edinburgh, one in Strasbourg where the European Court of Human Rights considered the practice and procedure of the Court of Session.

First, on 4 February, the Court of Session enacted a major change to the rules governing most Inner House business. The Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Causes in the Inner House) 2010, SSI 2010/30, comes into force on 5th April 2010 and replaces Chapters 38, 39, and 40 of the Rules of Court. This substantially follows the recommendations of Lord Penrose’s ‘Review of Inner House Business‘, which adopted the view of a researcher, Dr Wadia, that ‘There is a working culture within the Inner House which appears to be unmanaged and unmanageable in its current form .’ Continue Reading »

This post quotes in full a recent response by the Office of the Advocate General to a freedom of information request by Alan Caskie, an advocate specialising in asylum and immigration law. This response shows that the success rate for petitions in this area is high, and rising year by year. Awards of expenses are an acid test of success; there may be many reasons why no award is asked for or made, but if one is asked for and made it is reasonably clear that the paying party lost.

In the tables below, which show all such cases (together with Inner House appeals) in which an award of expenses was either conceded by one side or the other, or made by the Court, we see for example that in the year 2009 there were exactly 100 asylum and immigration petitions in which an award of expenses was either conceded or made. In only twelve was the award against the petitioner. In no less than seventy-six, it was in favour of the petitioner. Continue Reading »

Answers to last month’s quiz below. Nobody got more than one question right, so rather than embarrass my loyal readership I am awarding myself the prize in terms of Rule 5.

1. Which published Court of Session opinion was removed from the Scotcourts website at the request of one party because its contents were said to be commercially confidential? Hat-tip to Douglas Macgregor of Brodies for this one, and also for supplying some of the background. The case is BSA International v Irvine 2009 CSOH 77, an opinion of Lord Glennie’s which discusses the duties of expert witnesses and also describes a potentially significant distinction between Scots and English law as to legal professional privilege. Douglas says Continue Reading »

Not this Calvin…

Well, I’m knocking off until the New Year. For those among my loyal readers who can’t keep away from the law over the break, I offer a prize of a bottle of the Faculty of Advocates finest Reading Room Claret to the best set of answers to this quiz on outré legal events of the last 365 days. Competition closes at Hogmanay midnight; answers by way of the comment form below, which is moderated so nothing will be published until next term. As a tie-breaker, points will be given for wit, imagination, and good guesses, so don’t feel you have to pass because you haven’t the faintest idea what the answer is. Multiple attempts are permitted, but may not be counted at my discretion. If you feel you need to know what the other rules are, they’re here, with credit and thanks to those great philosophers Calvin and Hobbes. Or you can ask, though I don’t promise to answer. And the compliments of the season to you. Continue Reading »

Statutory provisions seeking to oust the jurisdiction of the courts have a long and inglorious history. Their desired object, to exclude any form of review by an independent court, is practically impossible to achieve. Some years ago, someone thought up a new wheeze: simply describe the body which it is sought to protect as a ‘superior court of record‘ and then assert loudly that the nature of such a court was that it could not be judicially reviewed; all rather reminiscent of the old South African line that Parliament could be declared a court so as to allow a bare majority to change the constitution (Minister of the Interior v Harris 1952 (4) SA 769). This phrase has, since the Leggatt Report, become fashionable with recently-created tribunals. Examples include the Special Immigration Appeals Commission and the Upper Tribunal, both of which are now declared to be such a court; the latter is becoming an increasingly important, if overlooked, part of the judicial firmament. Never mind that ‘the precise legal significance of this expression is not entirely clear, even in England, and possibly not at all in Scotland‘; indeed, as noted below, it has ‘no recognised meaning in Scotland‘. The simple argument was that superior courts of record could not be subject to judicial review, because they couldn’t be.

In the recent English case of Cart & Ors, R (on the application of) v The Upper Tribunal & Ors [2009] EWHC 3052 (Admin), this argument was run by Government and rejected by the court. Continue Reading »

At the talk I gave on this subject to the conference on environmental justice organised by the Environmental Law Centre last Monday, I promised to post a synopsis of the issues discussed, and the handouts on ambit and on appeal routes, here.

The background

There has since 2005 been a general right to freedom of information held by or on behalf of public authorities in the United Kingdom. The right to access to environmental information, however, long predates this, going back to Directive 90/313/EEC and its implementing regulations; although the scheme now in force, Directive 2003/4/EC and its implementing regulations, the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 is tighter, the basic scheme has been in place since 1992. Nevertheless, this scheme has attracted far less attention than the general scheme of the two Freedom of Information Acts, the UK Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002, which only came into force thirteen years later. Continue Reading »