Jonathan Mitchell QC

It is twenty years since the United Kingdom introduced the principle of carriers’ liability for immigration, by which transport operators are penalised if they fail to operate an entirely effective system for policing immigration: see this article for a concise explanation of the legislation in its context. This principle has, however, a far more ancient ancestor in Scots law than is generally known.

On 21st June 1614 the Privy Council passed the following Act: Continue Reading »

In the last year, the majority of advocates stables have established websites (all linked to from this page). The Journal of the Law Society of Scotland reviewed them in March and April 2008.¹ This article notes some statistics as to the comparative popularity of stable websites. Continue Reading »

1. The second of these articles, rather oddly, begins with the now-dead site of the even odder body named ‘Instruct Counsel Ltd’, which was never a stable website at all. [back]

The Murray Stable launched its Public Law Group at a well-attended meeting on 29 May chaired by Derek O’Carroll. Ailsa Carmichael and I spoke on “Ten Dos and Don’ts of Judicial Review“. The handout Continue Reading »

This is, with some additions, the text of my handout for the Human Rights Conference 2008, held on 19 May 2008.

Is Freedom of Information a ‘Human Right’?

The right of access to official information is nowhere protected explicitly by ECHR. Attempts to establish a right of access to official information under Article 10, which protects the right to impart and to receive information, have not so far been successful. Continue Reading »

In the last year, following Lord Penrose’s Review of the Inner House in 2006¹, the Inner House has become increasingly intolerant of time-wasting appeals. As was said in one case (Billig, below), “The court has, particularly in recent times, frequently had cause to upbraid parties and their advisers for failure properly to take into account the waste of public resources caused by late settlements and related matters. In the nature of things, [such] strictures of the court … rarely find their way into written judgments”. Since early 2007, however, the Inner House has issued a number of opinions which name and shame those responsible; Continue Reading »

1. This report is not published, but is referred to at numerous points in the Civil Courts Review Consultation Paper. Among its finding were that almost half of all summar roll hearings were discharged. [back]

In the Court of Session, appeals against statutory tribunals are brought under Chapter 41 of the Rules of Court. Rules 41.3(1A) and 41.21(4) provide that the appeal should be intimated to the tribunal as well as any party to the case. What happens if the appeal attacks the manner in which the tribunal acted, for example alleging a breach of natural justice? This happened recently in S.C. v City of Edinburgh Council, 2008 CSOH 60, in which I appeared for the respondent. In S.C., it was suggested that the Additional Support Needs Tribunal had no right to appear in the appeal. Continue Reading »

Simmers v Innes, 2008 UKHL 24, in which I must declare an interest as I acted for the respondent, is the third Scottish appeal to the House of Lords in a year in which the appeal was refused without the respondent being called on to reply (the others were Wilson v Jaymarke 2007 UKHL 29 and Clarke v Fennoscandia 2007 UKHL 56, in which I acted for the appellant in the Court of Session but not the House of Lords).

In Jaymarke, Lord Hope said: Continue Reading »

In October 2006, the Faculty of Advocates adopted new rules as to who, other than Scottish solicitors, could instruct counsel. Since then, several bodies have been added to the list (there is an up-to-date list here). Standard terms of instruction were published in early 2007. There is a Direct Access Guidance Committee which keeps direct access under review. I am its convener; the other members are Alan Dewar QC, Nick Ellis QC, Steve Laing, Shahid Latif, Jan McCall, Frances McMenamin QC, Robert Milligan, Philip Simpson, Andrew Smith QC and Ailsa Wilson QC.

Anyone who doesn’t already have direct access rights as being a member of one of the classes in that list is very welcome to apply to be added. This is done by writing to me as Committee convener, in the first place. The Committee adds bodies, or individuals, on an ad hoc basis, subject to ratification by either the Dean or Faculty Council.

Direct Access does not, with some very minor exceptions, entitle anyone other than a Scottish solicitor to instruct counsel in a litigation in a Scottish court (as opposed to tribunal). This is not a Faculty rule; it is because there are statutory restrictions on anyone other than a Scottish solicitor acting as agent for a litigant in a Scottish court.

The Committee is keen to hear from anyone with an interest in how the scheme could or should be altered or expanded. For example, should members of the public generally have direct access rights, as the Scottish Consumer Council has suggested? Are there any difficulties with the standard terms?

This seminar, at Glasgow University at 5.30pm on Wednesday 23 April, is the first to be held by the newly-formed Scottish Public Law Group. Full details are at Murray Stable calendar.

The Scottish Public Law Group was launched in February 2008 as a forum in which academics, advocates, solicitors and government lawyers can meet and discuss matters of topical interest in public law in Scotland. In its first year, it is intended to hold a series of quarterly seminars. The Summer Seminar, on “Re-thinking the devolution settlement and the ‘national conversation’”, will be hosted by the Faculty of Advocates on 26 June 2008. Further details will be posted here in due course.

Murray and Hastie Stables have organised an Employment Law Seminar which will be held on Monday 21st April 2008 from 9.15am to 3.30pm in Edinburgh. Speakers include The Honourable Lady Smith, Ian Truscott QC, Brian Napier QC, Donald Cameron, Advocate and Alice Stobart, Advocate, who will discuss a wide range of current employment law issues. The talks will be followed by a tribunal advocacy workshop in the afternoon. CPD 4.5 hours; fee (including lunch) of £45.

Full details on the Murray Stable calendar.