Oct 05 2010

Judicial conduct and complaints

Published by under Scots law

Last month, the Scottish judiciary launched an excellent new website (even the reliably-bilious Peter Cherbi described it as ‘quite good’!). It has a great deal of material which was previously inaccessible, ranging from all travel and subsistence expenses claimed by individual salaried judicial office holders to summaries of significant sentencing statements in the courts; even a Twitter feed, for the benefit of journalists rather than lawyers or the public. An enormous improvement on the tired and convoluted Scottish Courts Service website, the site shows care at every level. One small but politically-significant example is the domain, which as Iain Nisbet has explained is sensibly ‘org.uk’ rather than the governmental ‘gov.uk': something the UK Supreme Court couldn’t manage in spite of cogent judicial criticism. Something I particularly liked is the use at many points of FAQs.

The matters I’d like to draw attention to here, however, are these: the publication of the new ‘Statement of Principles of Judicial Ethics for the Scottish Judiciary‘, formerly available only in samizdat form since April, and the implementation of an interim complaints procedure. Continue Reading »

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Sep 03 2010

Beyond parody: Miss World and South Lanarkshire

Published by under Info law,International law,Scots law

I’ve said before that Mr Justice Albie Sachs of the South African Constitutional Court is one of the great judges of our time. One of his great writings is his concurring opinion in the case of Laugh It Off Promotions CC v South African Breweries International (Finance) BV, [2005] ZACC 7, in which he posed the question “Does the law have a sense of humour?”. This was an action by a beer distributor in which, to use his words,

a graduate of a course in journalism decided to do battle with a number of corporate giants, calling his enterprise Laugh it Off and arming himself with T-shirts bearing parodied images and words brazenly pilfered from his opponents. One of his victims, South African Breweries [SAB], saw one of its well-known trademarks reproduced on T-shirts for public sale. The words ‘Black Label’ and ‘Carling Beer’, which accompanied the logo were transformed into ‘Black Labour’ and ‘White Guilt’. In smaller lettering the slogans, ‘America’s Lusty Lively Beer’ and ‘Brewed in South Africa’ were converted into ‘Africa’s Lusty Lively Exploitation Since 1652, No Regard Given Worldwide’. SAB did not laugh. Instead it went to the Cape High Court and sought, and obtained, an interdict restraining distribution of the T-shirts.

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Sep 02 2010

What’s wrong with South Lanarkshire?

Published by under Scots law

South Lanarkshire Council has long had a certain reputation for Brezhnevism. Recently it seems to have excelled itself by bringing threatening proceedings for defamation in Lanark Sheriff Court against the membership of a local community council for an article on its website which linked to another article on a different organisation’s website entitled “South Lanarkshire Council and Scottish Coal Hand-in-Hand at Community LIE-aison Meeting”. I have never before heard of a Scottish local authority attempting to bring a defamation action at all, let alone one like this which is done purely to shut up ordinary political criticism. No authority with any appreciation of the right of free speech, and its relationship with the rule of law, could abuse the legal system like this. This sort of legal action happens in Russia, which is one reason why Russia keeps the European Court of Human Rights so busy: but until now, it didn’t happen in Scotland. Continue Reading »

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Jun 13 2010

Standing in public law cases

Published by under Scots law

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 »

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Jun 01 2010

Legal aid in the Upper Tribunal: update on what’s happening

Published by under Events,Scots law

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.
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May 26 2010

Representing victims of trafficking in Scotland

Published by under Events,International law,Scots law

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 »

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May 26 2010

Forthcoming conference: Scottish Public Law Group

Published by under Events,Scots law

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 »

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Feb 22 2010

The Court of Session meets article 6 of the ECHR

Published by under Scots law

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 »

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Feb 09 2010

Success rate in judicial review petitions in Scotland

Published by under Scots law

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 »

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Feb 01 2010

So last year

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 »

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