Jonathan Mitchell QC

Albie Sachs, Justice of the South African Constitutional Court, is one of the great judges (and in one of the great courts) of our time. On 24 June he was in Edinburgh, first speaking to the first joint meeting of the four UK and Ireland Human Rights Commissions (I wasn’t there) and then at a meeting organised by the Scottish Commissioner for Children and Young Persons (I was). The topic at the second talk was how the landmark decision in the case of S v M, 2007 ZACC 18, in which the South African Constitutional Court held that the rights of children had to be taken into account in criminal proceedings against their mother (in their own right and not merely as an aspect of the mother’s rights), came to be made, and its resonance for Scotland. Jackie Kemp’s already written a good account of the event as a whole, and I intend here to pick up some miscellaneous issues rather than duplicate that. Continue Reading »

On 1 July, the Tribunals Service launched a consultation as to the rules to be used for asylum and immigration cases in the Upper Tribunal when the AIT merges with it next year. There is to be no consultation on the rules for asylum and immigration cases at first instance: the Tribunals Service notes without comment “The Government has confirmed that the current Asylum and Immigration Tribunal rules will be amended to become procedure rules for the First-Tier Immigration and Asylum Chamber.”

The consultation exercise runs for twelve weeks, and views are apparently sought from “stakeholders” although goodness knows whether they have been told this. This is the full consultation paper, with proposed rules and practice statements. There are knock-on changes in the provisions for appeal to the Court of Session. Rather gallingly, Rule 18 refers to legal aid funding being “granted by the Scottish Legal Aid Board” although there is still no provision for legal aid before the Tribunal in Scottish cases.

Two recent studies suggest that the answer largely depends on the tribunal.

In one, ‘Tribunals Ain’t What They Used To Be‘, which is summarised in the March 2009 edition of the newsletter of the Administrative Justice & Tribunals Council, Professor Michael Adler of Edinburgh University looked at five tribunals. These were the Criminal Injuries Compensation Appeal Panel; the Social Security and Child Support Tribunal; the Additional Support Needs Tribunal (Scotland); Special Educational Needs and Disability Tribunals (England); and the Employment Tribunal. As he comments, “research and ‘experience’ seemed to have made it clear that having a representative (although not necessarily a legal representative) greatly increased the prospects of a successful tribunal outcome… across the board, the ‘premiums’ associated with representation were 15-18 per cent.” Continue Reading »

The increasingly important issue of Unaccompanied Asylum Seeker Children (UASCs), children under 18 who are not cared for by any adult in this country, is the topic of a seminar on Friday 5th June 2009 organised jointly by the Glasgow Immigration Practitioners’ Group, the Murray Stable, and the Scottish Refugee Council. Continue Reading »

The nascent Scottish Human Rights Law Group is intended to bring together Scots lawyers and those working in and around the law in Scotland with an interest in human rights issues. Its website, in the course of development, is ambitiously intended to provide a database of law reports, articles, textbook updates, and other items, categorised by area of law and by Convention article; there will be ‘contributing editors’ for particular sections, each responsible for updating his or her assigned area of the law and in a position to receive comments, submissions, and suggestions for updating from other parties/members of the group. The proposed categorisations, which are flexible, can be seen by browsing its sidebar. Continue Reading »

Following last year’s sham consultation, from which even the judiciary were excluded until they heard of it by chance, and a set of responses which even the Home Office could only describe as “mixed”, the Asylum and Immigration Tribunal has today circulated some of its “stakeholders” to inform them that the tribunal will be merged into the unified tribunal structure early next year: no earlier, it says, than February 2010. My thanks to the anonymous correspondent who passed a couple of its internal circulars to me, including a set of FAQs, supposedly from the Tribunals Service but pretty obviously written by the Home Office, as to the move. Continue Reading »

A guest post by Aidan O’Neill QC

Jonathan Mitchell writes: In the first guest article to appear on this site, Aidan O’Neill QC, a leading advocate in human rights litigation in Scotland, who successfully acted in Somerville v Scottish Ministers, argues that the proposed introduction of a one-year time limit on human rights claims under the Scotland Act is a wrong move and concludes “this is being done without any public consultation, in what looks like a helter-skelter rush to change the constitution to the Scottish Government’s advantage before anyone apparently notices the implications of what is being done“. Update: the day this was published, the Justice Committee recommended that the draft Scotland Act 1998 (Modification of Schedule 4) Order 2009 be approved. Over to Aidan: Continue Reading »

Historically, only Scottish solicitors and advocates have had rights to conduct litigation, and rights of audience, in Scottish courts. European lawyers have some limited rights, which have not proved important in practice. Since sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came into force in March 2007, however, it has been possible for members of other bodies to seek both rights of litigation and rights of audience. The Lord President’s Guide On Making An Application gives a full account of the procedure. An application must be accompanied by a draft scheme indicating the code of conduct required of members, a complaints procedure, disciplinary procedures and sanctions. The Lord President and Scottish Ministers must both approve the scheme before it can come into effect, and have powers to withdraw rights if they feel that the body is in breach of that scheme. There have been significant differences of opinion as to the approach to such applications and as to the threshold to be applied. Continue Reading »

Scottish local authorities which seek to enforce access rights under Part 1 of the Land Reform (Scotland) Act 2003 normally do so by serving a notice under section 14 of the Act. Following the decision of the Inner House in the first case in which it considered this legislation, Tuley v Highland Council, 2009 CSIH 31A, this may change; effective challenges to such notices will be easier. Tuley, in which I acted for the successful appellant, is an important decision which should substantially alter perception of how the Act works in practice. Continue Reading »

In a throwback to medieval sumptuary laws, House Bill 2099, locally known as the ‘Saggy Pants Bill’, is now under consideration in the Tennessee legislature. The Bill makes it a criminal offence to “knowingly wear pants below the waistline, in a public place, in a manner that exposes the person’s underwear or bare buttocks.” Continue Reading »