Law for Scottish lawmakers

A JUSTICE guide to the law

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Contents

5 Welcome 27 Chapter 4: 47 Chapter 6: Public law and judicial review EU and international law 6 Foreword What is judicial review? The European Union What are the ‘grounds’ for judicial review? International law 7 Chapter 1: Who can bring a judicial review? Law for lawmakers What can the court do? 55 Chapter 7: Introduction Want to know more? , Wales and Northern The UK constitutional context Where next for legal help? Constitutional principles 33 Chapter 5: and the individual 60 References Introduction 17 Chapter 2: 64 Acknowledgments Common law rights The rule of law The European Convention on Human What is the rule of law? Rights Some key features of the rule of law The The European Court of Human Rights 21 Chapter 3: Introduction to the law The Primary and subordinate legislation The common law The role of judges What about international law?

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About JUSTICE Welcome Established in 1957 by a group of leading jurists, JUSTICE is an all-party law reform and human rights As the Chair and Vice-Chair of JUSTICE we are organisation working to strengthen the justice system pleased to open this new guide to the law for Scottish – administrative, civil and criminal – in the United lawmakers. Following the introduction in 2015 of Law for Kingdom. We are a membership organisation, Lawmakers for a Westminster audience, it is designed to composed largely of legal professionals, ranging provide a basic introduction to some of the core legal and from law students to the senior judiciary. In Scotland, constitutional principles with which parliamentarians JUSTICE’s work is carried out predominantly by our grapple on a daily basis at Holyrood. We hope it will prove volunteer members. a useful ‘pocket guide’ for MSPs as well as their staff. Our vision is of fair, accessible and efficient law and policy and to propose practical legal processes, in which the individual’s rights solutions to legal problems for law-makers, Since its recent inception in 2012, JUSTICE of the . This guide doesn’t are protected, and which reflect the country’s judges and public servants. Scotland has worked hard to engage with provide answers to those questions but international reputation for upholding and all political parties on a non-partisan basis. does provide a basic glossary to help inform An important part of this work is done promoting the rule of law. To this end: Each represents a different political tradition, discussion and debate. At its heart is a shared with decision makers in Parliament and but we work through JUSTICE with understanding – stepping beyond party • We carry out research and analysis to Government, where we work to provide parliamentarians to raise the profile of legal politics – of the role that Parliament plays generate, develop and evaluate ideas for practical briefings on the law for officials, MPs, problems with constitutional significance for in both making the law work and ensuring law reform, drawing on the experience MSPs and Peers, free from party political our justice system and for the rule of law. respect for the rule of law in practice. and insights of our members. influence JUSTICE works to create a useful bridge If you have any questions about the guide, or • We intervene in superior domestic and This guide is designed to provide a between politics and law, between public w the legal impact of this Parliament’s work, international courts, sharing our legal basic introduction. servants and the legal community. JUSTICE has a small but dedicated team of research, analysis and arguments to Key concepts and legal terms are promote strong and effective judgments. highlighted in ‘bold’. A brief plain English In these times of political and constitutional lawyers ready to provide further support and description follows. change we face significant questions about the assistance where they can. • We promote a better understanding of the nature of our democracy and the foundation fair administration of justice among political Fuller information is provided in end notes. decision-makers and public servants. Signposts on where to find further legal advice and support are provided in Chapter Derek Ogg QC • We bring people together to discuss 7, with clickable links to further information critical issues relating to the justice Chair, JUSTICE Scotland and contacts. 59 Carter Lane system, and to provide a thoughtful legal We use the term ‘MPs’ and ‘MSPs’ London EC4V 5AQ framework to inform policy debate. throughout the guide as shorthand. We [email protected] A key goal is to provide evidence-based hope that this material will be useful to Catherine Smith MSPs and to their staff. 020 7329 5100 analysis to inform the development of new Vice-Chair Image © Scottish Parliamentary Corporate Body

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Foreword Chapter 1: Law for lawmakers Lord President of the ; Introduction and principles that determine how our Lord Justice General of the On any one day, an government works any less significant. As the makers of our laws, as our MSP might be asked to representatives, and in holding the Scottish consider the law in a number One of the most important constitutional developments in the UK relates to the We are at a crucial point in the development of the Government to account, MSPs wear many of ways: hats. Each of these roles requires MSPs to increasing amount of power which is Scottish legal system. Political uncertainty over the United grapple with the law every day. However, In the Chamber: Every new Bill devolved from the UK Parliament to Kingdom’s departure from the European Union, and the whilst the legal profession has always been presented to Parliament is a proposal to Scotland, Wales, and , and well-represented in politics, politicians are change the law. These vary in their legal more recently, to major cities. place of Scotland in the future world order, are only two complexity and their significance. not elected for their ability as lawyers. This Our political discourse has recently of the important issues which the will is no bad thing. A Parliament full of aspiring Conducting scrutiny: The Scottish been dominated by constitutional issues, lawyers would not only run the risk of Parliament’s Committees work hard to have to grapple with in the coming months and years. hold the government to account. This including our relationship with the focussing on legal technicality rather than work can include checking whether European Union, the scope of devolution, policy goals, but could also be deeply dull. Ministers and agencies are acting lawfully the protection of human rights and, The legal consequences of the anticipated explains how this is done. It describes the and carefully examining proposed ultimately, the future of the United political change may be very significant. constitution and the structure of the courts. It Nonetheless, a clear understanding of legislation. Kingdom itself. This guide does not set out They will require legislative alterations to the outlines the key principles of public law and how law and the legal system works, its In their constituency: MSPs regularly to provide answers to those questions, but substantive law, especially in those areas which the procedures and rules by which the courts principles and its limitations is vital for help constituents with their problems, may help readers explore the constitutional have been heavily influenced by the EU. As determine cases against the state. It provides a MSPs seeking to understanding how our including on immigration, housing and and legal principles which lie behind them. law-makers, Scottish Parliamentarians will be summary of the principles by which the courts constitution, our Government and our eviction, access to health and social care responsible for many of these alterations. review administrative and legislative acts. It is society is regulated and how the rights of services, and challenges to local authority decision-making. not intended to be comprehensive. It is instead individuals are protected or enforced. The courts’ role is primarily to interpret a reference into which the Parliamentarian can The UK’s ‘unwritten’ the laws which are laid down by Parliament This short guide briefly introduces some of dip on an occasional basis. constitution and not to create their own legislation. An the key legal and constitutional principles The UK constitutional important part of the courts’ function is to I congratulate the authors in having achieved which MSPs encounter in their work. It is context The UK is commonly said to have an determine matters of public law; that is to say the aim of presenting the substance and designed to start a conversation about the ‘unwritten constitution’. This shorthand disputes involving an individual or organisation practice of the law, which can sometimes be bridge between politics and the law, and to The starting point for any conversation on is popular but could be misleading. It might on one side and the state on the other. This unnecessarily over-complicated, in a concise encourage discussion about independent the law is always the constitution. The UK suggest that we have never bothered to think booklet is intended to be a handy guide, which and readable way. legal support for MSPs. is rare in having no single constitutional properly about the rules which govern the document. Instead, our constitution is relationships between the institutions of state. The Right Hon Lord Carloway found in an accumulation of principles, In fact, those rules have evolved over centuries March 2017 conventions, precedents and pieces of of thought and practice, and they continue legislation. Although you can’t download to do so. This makes the constitution more a copy or borrow the constitution from difficult to grasp, but also means that it can the library, this doesn’t make the rules adapt to the needs of our community.

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The constitution is ultimately derived There are two main elements to legislative The second main element of the Scotland Devolution: Scotland’s There shall be a Scottish SUMMARY from a range of sources, many of which constitution Government, whose members shall be competence. The first is that ‘reserved’ Act is the incorporation of human rights date from well before the creation of the (a) the First Minister, such Ministers as matters remain under the sole control of the protections and EU law within the Scotland The UK has no written constitution, but is United Kingdom, including ancient English In many ways, the constitutional position of the First Minister may appoint…, and UK Parliament and are outwith the Scottish Act itself. Any legislative provision that is governed by constitutional principles set ‘statutes’ like and the Bill Scotland is more clearly defined. (c) the Lord and the Solicitor Parliament’s legislative competence. These incompatible with ‘convention rights’ is in practice. General for Scotland” of Rights 1689. These are joined by more The set out that include areas such as foreign policy, defence automatically outside legislative competence. The powers of the Scottish Parliament modern statements from Parliament on the abdicating King James II of England The , Section 44(1) and energy. The Scotland Act only lists those Convention rights are the same set of rights are constrained by the Scotland Act 1998 how we run the country. For example, and VII of Scotland had over-reached his areas which are reserved, all other matters under the European Convention on Human which sets out the legislative competence As with any piece of legislation, it can be of the parliament. the Constitutional Reform Act 2005, the executive powers and therefore forfeited are ‘devolved’ and are delegated to the Rights which have been brought into UK amended by the UK Parliament,3 and was European Communities Act 1972, and the Scottish Crown. The Claim of Right also primary control of the Scottish Parliament. law by the Human Rights Act 1998. Any Some policy areas are explicitly reserved so amended by the Scotland Acts 2012 and the Acts which govern the devolution asserted that the monarch is answerable The reserved matters are set out in two ways. provision which would breach EU law is also to the UK Parliament. All other policy 2016. One such amendment declares that settlement all shape our constitution as it to the law and to the people, which A list of reserved subject areas is contained in automatically outside legislative competence, areas are devolved. the and Parliament stands today. cemented the idea of Scotland as a popular Schedule 5 to the Scotland Act 1998 and a list so long as the UK remains a member of the Human rights protection and EU law is are permanent features of the UK’s 1 of legislation which is reserved and may not European Union. Less simple to identify are the conventions sovereignty. built into the Scotland Act and governs constitutional arrangements that can only be amended by the Scottish Parliament is set both the parliament’s powers and the acts which underpin our constitution, including 4 The Acts of Union 1706 and 1707 then be abolished by a Scottish referendum. The out in Schedule 4.6 A number of mechanisms are provided to of the Scottish Government. our system of ‘prerogative powers’. united England and Scotland. Although final say on interpretation of the Scotland police legislative competence. Any person These are powers which traditionally they created a union, it was not ‘perfect’ Act lies with the courts, and ultimately the Under all three devolution settlements, introducing a Bill in the Scottish Parliament belonged to the Crown by reason of and preserved the distinct traditions. The of the United Kingdom. For the UK Parliament may still make must make a statement on whether it its sovereign power alone. In practice, treaty further contributed to the particular that reason, the Scotland Act is sometimes legislation which applies in devolved areas falls within the parliament’s legislative however, they are now exercised by the Constitutional principles character of Scotland’s constitutional described as ‘Scotland’s Constitution’. of responsibility but it will not normally competence. The Presiding Officer must also central government on behalf of the Crown. position, preserving Scotland’s distinct Equivalent legislation creates the devolution act without the consent of the devolved independently assess legislative competence. Parliamentary sovereignty These include powers such as deploying 2 5 nationhood within the union. settlement for Wales and Northern Ireland. Parliament or Assembly (‘the Sewel After a bill is passed, but before Royal Assent, UK Armed Forces and signing binding and the rule of law The devolution settlement is often described Convention’). Where the Scottish it may be challenged in the Supreme Court international treaties. The Scottish Parliament and Scottish The UK constitution rests on two core as ‘asymmetric’, as the scope of devolution Parliament is invited to give consent, this is by any of the UK or Scottish Government’s Government were since created by an Act common law principles. The first is that the The ‘common law’, which is a set of varies across each of the nations. done by means of a ‘Legislative Consent law officers. Following enactment, legislative of Parliament, the Scotland Act 1998 and UK Parliament is sovereign. The second is legal rules that have been developed by the Motion’ or ‘LCM’.7 The list of reserved competence of any law can also be challenged their powers and limits are defined by that that we are all – including the government courts over time, is also an integral part of The scope of the Scottish Parliament’s matters can be amended by primary or in the courts by anyone directly affected by legislation. of the day – governed by the rule of law. our law. It is the source of many important powers are defined by the concept of secondary legislation of the UK Government. the law. ‘legislative competence’. principles about who holds power in our There shall be a Scottish These are known as ‘section 30(1) constitution – and how that power is Parliament.” orders’. A recent example was the section exercised. An Act of the Scottish Parliament is 30(1) order used to permit the Scottish The Scotland Act 1998, Section 1(1) not law so far as any provision of the Act Parliament to pass the Scottish Independence is outside the legislative competence of Referendum Act 2013. the Parliament.”

The Scotland Act 1998, Section 29(1)

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Exactly how far the doctrine can be pushed This makes sure that government bodies • The judiciary interprets, enforces and the UK Parliament, Article 9 of the Bill of The sovereignty of Parliament and has occasionally been questioned but, for and other agencies can’t interfere with our applies the resulting legal rules. Rights 1689 prevents domestic courts from SUMMARY the supremacy of the law of the land… may appear to stand in opposition practical purposes, it remains the basis on freedom without Parliamentary approval; This allows for a system of ‘checks’ and directly calling into question the proceedings To fairly decide disputes between 9 to each other, or to be at best only which the constitution is said to operate. we are all, including government, equal ‘balances’ designed to ensure that each of Parliament. This is known as the concept individuals – and between people counterbalancing forces. But this before the law. The now 800 year-old of ‘parliamentary privilege’. For the and public bodies – judges must As already discussed, the Scottish institution works within the constitution. appearance is delusive; the sovereignty Magna Carta – which guarantees against Scottish Parliament, similar rules are built be independent. of Parliament…favours the supremacy of Parliament does not enjoy parliamentary unlawful detention and punishment without At the UK level, the executive comprises the into Section 41 of the Scotland Act 1998. the law, whilst the predominance of rigid sovereignty equivalent to that of the due process – provides one of the earliest government, including the Prime Minister, While the Constitutional Reform Act 2005 legality throughout our institutions evokes UK Parliament. The courts can overrule the exercise and thus increases the examples of the rule of law in action. Cabinet Ministers and the Crown. The Some of the checks that each of these bodies and, for Scotland, the Judiciary and Courts the Scottish Parliament’s legislation if it authority of Parliamentary sovereignty.” legislature – Parliament – comprises the perform on each other are explored in this (Scotland) Act 2008, set the principle of falls outwith legislative competence and Similar constitutional concepts developed in House of Commons, the House of Lords and guide. Parliament can make laws which affect judicial independence in statute, it is a A V Dicey, Introduction to the Study of have now done so on a small number of Scotland prior to the Union. For instance, 8 the Crown, and the judiciary comprises the how both the executive and the judiciary long-standing principle of the common the Law of the Constitution occasions. However, the courts have also the Claim of Right Act 1689, an Act of judges in the courts and system. work. Parliament sets the budget with which law which underpins the right to access to made clear that the special status of the the former Scottish Parliament, contains In Scotland, the executive is the Scottish the executive has to work. When Ministers justice, the rule of law and the separation of Scottish Parliament as a directly elected provisions rejecting the extra-judicial use of Parliamentary sovereignty Government, being the First Minister and act unlawfully, we can ask the courts to step powers. representative body will be recognised by imprisonment.12 the Scottish Ministers; the legislature is the in. It is a core principle of our constitution that the courts when assessing the validity of its [I swear that] I will do right to all As a common law rule, the impact of the Scottish Parliament; and the courts and the UK Parliament is the primary source decisions.10 manner of people after the laws and of legislative authority for the UK. This rule of law is best understood by looking tribunals operate as in the rest of the UK. SUMMARY usages of this realm, without fear or principle is a common law rule recognised at how it works in practice. We do this in The separation of powers means that favour, affection or ill will.” by courts over centuries. Chapter 2. Unlike in some countries, the separation of Ministers, Parliament and the courts each The rule of law powers between institutions in the UK and respect their different – and independent The Judicial Oath Scotland is by no means absolute. As at a – roles in the constitution. Parliamentary sovereignty is a The ‘rule of law’ lies at the heart of Judges must be free from influence by the principle of the UK constitution. It UK level, Scottish Ministers are members modern democracy, but it is a phrase The separation of powers other branches of government, business, makes Parliament the supreme legal of the executive but simultaneously sit and political parties, other judges, the press authority in the UK, which can create much used and little explained. The principle of the ‘separation of vote in the Scottish Parliament. While this and media, and any other organisation or or end any law. Generally, the courts powers’ requires that all three arms of the The rule of law does not mean ‘rule by means that the government can vote as part individual which might sway them in their cannot overrule its legislation and no state – the legislature, the executive and the The independence of the judiciary Parliament can pass laws that future lawyers’. While it is often said that the of the legislature, it also means that Scottish decision-making. judiciary – perform their constitutionally The constitutional role of the judge is to Parliaments cannot change.” judiciary is the ultimate guardian of the Ministers remain subject to the rules of the rule of law, this is not the same as saying distinct roles independently of each other: Scottish Parliament. decide cases fairly and in accordance with Independence from Parliament and the www.parliament.uk the law. A judge subject to outside influence that the view of judges will always trump • The executive is responsible for executive is particularly important. It is Parliament’s intention.11 What it does mean formulating and implementing policy; Nevertheless, the independence of each of cannot discharge his or her responsibility to vital that the judges who adjudicate on the is that no government can do anything our institutions remains critically important. provide impartial justice. law are independent from those who make • The legislature oversees the work of the unless it can point to the law which gives and implement it. executive, and creates the law to reflect it the power to do so. The relationship between the legislature policy; and and the courts is also based on respect for their different constitutional functions. For

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• Finally, and crucially, both actual bias and Historically this has been called ‘judicial disagree with them privately. Unelected but democratic Judicial appointments the appearance of bias are barred. In the deference’ to either parliament or to • The UK intends to abide by its obligations Historically, the Lord Chancellor’s office famous Pinochet case, a House of Lords the executive. It is an illustration of the in international law. It is of course true that the judges comprised elements of executive, decision was overturned because one of distinct ‘institutional competence’ in this country are not elected and are legislative and judicial power for the the judges was linked to a charity which of the branches of government, with each Our legal system not answerable to Parliament. It is also UK. The highest court in the UK was intervened in the case. There was no technically a committee of the House of recognising the importance of respect for of course true…that Parliament, the suggestion that the judge had not acted the separation of powers when performing The UK does not have a single legal system. executive and the courts have different Lords. Today, the Lord Chancellor has no judicial role and the new Supreme Court independently, but the appearance that he their proper constitutional role. Instead, our constitution recognises three functions. But the function of independent could have done so meant the case had to be distinct legal jurisdictions: in England and judges charged to interpret and apply of the United Kingdom is entirely separate 16 the law is universally recognised as a from the legislature and executive. heard again. Wales, Scotland, and Northern Ireland, cardinal feature of the modern democratic each with its own system of courts and laws. In Scotland, the Lord President is head state, a cornerstone of the rule of law Institutional competence and respect of the Judiciary. Responsibility for the Other key features of itself.” Scottish Courts and Tribunals Service Points of constitutional crisis in the history the constitution SUMMARY was transferred to the Lord President. Lord Bingham, Belmarsh 13 of the UK have been exceptionally rare. It is no longer within the remit of the There are a range of other conventions The three legal jurisdictions in the UK – in Scottish Government to help preserve the Generally, the principles of parliamentary and principles which form part of the UK England and Wales, Northern Ireland and sovereignty and the rule of law reinforce Preservation of this impartiality has a operational independence of the courts. constitution which we cannot cover in detail. Scotland – have their own laws, judges the distinct constitutional responsibilities of Most are grounded in the common law and and courts but share many common number of consequences: Independent bodies are responsible for principles. judicial appointments and remuneration Parliament and the judiciary. reflected in the Ministerial Code, the Civil • The judiciary must be institutionally within their jurisdiction. For example, the Just as the UK and Scottish Parliaments Service Code or in the Cabinet Manual. and functionally separate from the other Judicial Appointments Board Scotland This section provides an introduction to recognise that it would not be proper In Scotland, the Scottish Ministerial Code branches of government. handles judicial recruitment, overseeing a the court system in Scotland, noting the merit-based selection process consisting to comment on live disputes, the courts applies and a separate (but very similar) 17 equivalent courts in England and Wales. • Judicial independence also assumes of online applications, shortlists and recognise that there are boundaries to their version of the Civil Service Code exists. that the other branches of government selection days. The Board has a statutory expertise. For example, in judicial review These documents are a helpful guide to the will refrain from personal attacks on duty to select candidates solely on merit, cases, judges will not substitute their own work of Ministers and officials and they are individual judges and undue criticism although diversity must also be taken into 14 decision for that of a public authority. They often used by Parliament in its scrutiny work. of judicial decisions. The First Minister, account. pay particular respect to the decisions of Examples of well-known constitutional Scottish Ministers, the and specialist tribunals and bodies appointed conventions include: MSPs all have an explicit duty to uphold the independence of the judiciary. The by the parliaments, and are sensitive to • The Queen does not withhold Royal Assent Government is barred from seeking to the limits of their ability to make decisions for any law passed by Parliament or the influence judicial decisions.15 about resource allocation or socio-economic Scottish Parliament. policy (see Chapter 4). • The principle of ‘collective cabinet responsibility’ means that all Ministers take responsibility for all of the

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The United Kingdom court system

Criminal The courts and tribunals In England and Wales and Northern the ‘’ of the Court of Session. Civil Ireland, all criminal cases begin life in the The Supreme Court unifies the three legal Where permitted, appeals can go from Both magistrates’ court. These are courts made 21 jurisdictions of the United Kingdom. It has the Inner House to the Supreme Court. up of lay magistrates sitting with a legally SUPREME COURT the power to give the last word on appeals Lower value cases are heard in the qualified adviser, or of District Judges from all jurisdictions and on all types of law Court. They may be appealed to the Sheriff sitting alone. Serious criminal cases go to in the UK (with the exception of its limited Appeal Court and then, if necessary, the the Crown Court for trial before a jury. If power in Scots criminal cases). The Supreme Inner House of the Court of Session. permission to appeal is granted, appeals go High Court Court of Court will generally only consider issues of Court of Appeal Court of Appeal of Justiciary Session to the Criminal Division of the Court of Civil cases in England and Wales are usually major public importance. Appeal Court (Inner House) Appeal, and, from there, to the Supreme dealt with by the county courts. Some Aside from the Supreme Court, each of Court. complex, sensitive or high-value claims are the three jurisdictions has its own system heard in the High Court. Certain specialist One important difference is that, in of courts and tribunals, which share many issues also have their own ‘division’ of Scotland, the choice of court for criminal similar features. the High Court; the Family Division of cases is a matter for the prosecutor who Sheriff Upper the High Court hears family cases and the High Court High Court determines the venue according to the Appeal Administrative Division deals with judicial Court gravity of the offence. This means that, review. Where permitted, appeals go to the Criminal courts unlike in England and Wales and Northern Civil Division of the Court of Appeal and In Scotland, minor criminal cases are Ireland, there is no right to a jury trial. on to the Supreme Court. The courts in allocated to the courts. Northern Ireland adopt the same model. Court of Crown County Upper Crown County Upper High Court More serious criminal cases go to the Sheriff Session Court Court Tribunal Court Court Tribunal of Justiciary Court to be considered by a Sheriff sitting Civil courts () either alone or with a jury.18 The Sheriff In Scotland, civil cases are heard in the local Tribunals Appeal Court will hear appeals in summary or in the Court of Session, Tribunals are bodies that, just like courts, cases. The most serious cases are prosecuted depending on the type of case and its value. must decide on legal disputes between Magistrates’ First Tier Magistrates’ First Tier Justice of the Sheriff First Tier in the High Court of Justiciary, which also The Court of Session is Scotland’s highest individuals. They are designed to adopt more Court Tribunal Court Tribunal Peace Court Court Tribunal acts as the final court of appeal for all Scots civil court and hears only the most valuable informal procedures and focus on specialist 19 criminal cases. Only when criminal cases cases or those involving judicial review. In areas of law. For example, specialist tribunals raise issues relating to European Union law the Court of Session, a case will normally hear cases relating to health and social care or Convention rights can the UK Supreme be heard by a single judge sitting in the entitlements, immigration and asylum claims, ENGLAND AND WALES NORTHERN IRELAND SCOTLAND Court become involved, and then only so far ‘Outer House’. Very occasionally, civil competition disputes and employment as required to resolve these ‘compatibility jury trials will be held in certain types of matters.22 issues’.20 cases. Appeals can be heard by the and/or three senior judges in This graphic does not illustrate all Tribunals operating in the three jurisdictions. It does not for example, show the Employment Tribunals or the Special Immigration Appeals Commission. Appeals from the High Court of Justiciary in Scotland to the Supreme Court are only possible in respect of ‘compatibility issues’.

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Chapter 2: The rule of law

Act 2005 and the Legal Services (Scotland) Wherever law ends, tyranny begins.” Act 2010.26 The Scottish Ministerial Code Elements of the rule of law 23 John Locke, 1690 binds Scottish Ministers to “comply with • No-one is above the law, and the law the law, including international law and applies equally to everyone, unless treaty obligations, and to uphold the objective differences mean people should be treated differently. The rule of law enforced by the administration of justice and to protect 27 • The law must be courts is the ultimate controlling factor on the integrity of public life”. The Scottish accessible and . Everyone should be which our constitution is based” Civil Service Code requires civil servants understandable able to find out what the law is. The law to “comply with the law and uphold the should be certain and predictable. Lord Hope, 28 Axa General Insurance, 201124 administration of justice”. Individuals should be able to plan their actions based on the law. • Legal rights and responsibilities are decided according to rules of law, not Imagine arriving home to discover that The hallmarks of a regime which by the exercise of general discretion. the Home Office has commissioned agents flouts the rule of law are, alas, all too • Ministers and public officials must to rifle through your papers, looking for familiar: the midnight knock on the door, the sudden disappearance, the show exercise their powers reasonably and evidence that you’ve committed an offence. trial, the subjection of prisoners to genetic in good faith. They must only use their The Minister argues that since there’s no experiment, the confession extracted by powers for the purpose for which they law to stop him, the government can do torture, the gulag and the concentration were conferred, and must not exceed the limits of their powers. what it likes. That’s just what happened in camp, the gas chamber, the practice of England in 1765. genocide or ethnic cleansing, the waging • The state must provide accessible of aggressive war. The list is endless.” ways for people to resolve legal In a classic illustration of the rule of law in disputes between them. Justice should Tom Bingham, 2010 29 action, in Entick v Carrington the High Court not be excessively delayed, or inordinately costly. of England and Wales decided that public bodies could only act according to the • Individuals are entitled to a fair trial in the determination of their legal rights powers which the law granted them. The and responsibilities. This includes the government suspected Mr Entick of sedition principle that judges be independent and had unlawfully sent its agents to look What is the rule of law? and impartial. for evidence. The state was not above the Lord Bingham of Cornhill, one of the • The state must comply with its law. 25 most respected jurists of the modern age, obligations in international law. It is hard to overstate the importance of the identified a number of its key features.30 • The law must provide adequate protection of fundamental rule of law. It sits alongside parliamentary human rights. sovereignty as a pillar of the constitution. It is declared to be a “continued constitutional principle” by the Constitutional Reform

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is justified by reference to their limited Respect for the rule of law requires access Transparency and legal certainty SUMMARY Democracy values each person maturity, experience and capacity. to justice for all, irrespective of economic The right to know and effectively equally. In most respects, this means that challenge the opposing party’s case The rule of law means that we are all the will of the majority must prevail. But or social status. This means that it shouldn’t is a fundamental feature of the The acceptance of the rule of law equal before the law, including the valuing each person equally also means Access to justice be too expensive or time-consuming for an judicial process. The right to a fair trial as a constitutional principle requires government. that the will of the majority cannot prevail Rights in law mean little unless they can individual to access the courts, tribunals or includes the right to be confronted by that a citizen, before committing himself if it is inconsistent with the equal rights of one’s accusers and the right to know to any course of action, should be able In practice, this means that there are other dispute resolution mechanisms. This minorities.” be interpreted and applied by a body the reasons for the outcome. It is to know in advance what are the legal limits on public power designed to with the power to enforce them. A tenant rule reaches back to Magna Carta which fundamental to our system of justice that, consequences that will flow from it.” make sure it is exercised fairly. Baroness Hale, Belmarsh 32 whose deposit has been unfairly withheld famously said “To no one will we sell, to no one subject to certain established 37 and limited exceptions, trials should Lord Diplock, by a former landlord should be able to go will we deny or delay, right or justice”. 42 be conducted and judgments given Black-Clawson International However, the rule of law is best explained to court to get it back. A person whose By requiring that legal rules must in public.” by looking at how it has been applied to home has been unlawfully searched by the generally be applicable to us all, the 39 The law must be clear and intelligible real life cases. police should be able to challenge his or her There is the old taunt, the familiar Lord Hope, Bank Mellat equality principle also provides a defence treatment in court. taunt, about His Majesty’s courts being enough to allow people to regulate their against arbitrary government. open to all just as the grill room at the conduct. This doesn’t mean that we must Some key features of the rule Ritz hotel is open to all.” Exceptions to this principle can be justified in all be lawyers, or the law so simple that Equality is not merely abstract Access to justice in action the public interest, for example, by providing 38 we can read it as easily as the newspaper. justice…there is no more effective Sir Hartley Shawcross of law screens to protect witnesses or hearing some However, it does mean that there must be practical guarantee against arbitrary and Suspecting that letters to and from his evidence in private to limit publicity and to Equality before the law unreasonable government than to require solicitor were being censored, a prisoner a clear answer about what the law is, and that the principles of law which officials challenged the prison governor’s power to It also sits behind the decision of the UK protect the identities of children. However, that answer must be reasonably accessible. Every person within the [UK] enjoys would impose upon a minority must be censor inmates’ correspondence. Parliament to make provision for legal aid these exceptions are closely examined. In practice, this means that: (a) the law the equal protection of our laws…He imposed generally.” (Sir Hartley used this Ritz comparison when In very limited circumstances, the principle This censorship of prisoners’ legal must be made public; (b) it must be who is subject to law is entitled to its introducing the first UK statute on legal aid of open justice must bend in order for the Justice Jackson, correspondence was unlawful: the right ‘prospective’ and not ‘retroactive’ protection.” Railway Express Agency, of access to a court was a fundamental in 1948). court to do justice. (i.e. forward-looking, not making behaviour 33 Lord Scarman, Khawaja 31 US Supreme Court common law right. It could not be limited unlawful after the event); and (c) it must except by Parliament’s express provision. Parliament hadn’t granted prison Some limited exceptions be relatively stable, with fair warning given Open justice of any significant change. The law must apply equally to everyone, This doesn’t mean that Parliament can governors this power of censorship, and so it wasn’t permitted. For example, the UK Parliament has regardless of their status, background or never distinguish between different classes It is a well-accepted feature of the right permitted one party to be shut out of court The need for transparency and accessibility wealth. It should not impose arbitrary or groups. The key is whether there is to access to justice that justice is best for part, or all, of the hearing of a civil affect the making of law by the Scottish distinctions between some individuals and an ‘objective justification’ for the done in public. case involving evidence which might be Parliament and the development of the It is a principle of our law that every damaging to national security.40 However, others. Laws that do this are inconsistent 34 difference. Distinctions between groups of citizen has a right of unimpeded access the Supreme Court has indicated that this common law by the judiciary. with the rule of law. people must be based on rational, objective to a court… [It] is a ‘basic right’. Even in kind of exceptional measure must be a For example, where an Act of the Scottish evidence. A law preventing people with our unwritten constitution it must rank as matter of last resort.41 a constitutional right.” Parliament gives discretion to a Scottish red hair from being teachers would fail Minister or other public official, that 35 36 the test. However, treating children who Steyn LJ, Leech discretion cannot generally be completely have committed crimes differently to adults

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Chapter 3: Introduction to the law

unfettered or undefined. If it were, it would The UK courts have a history of protecting In common with the other jurisdictions Laws passed by Parliament: be extremely difficult for individuals to individual rights through the common law, within the UK, the primary sources of SUMMARY know how the discretion might affect them as a fundamental part of the rule of law (see are legislation made by, or a quick guide in practice. Might it be at the whim of how Chapter 5). The incorporation of human under the authority of, the UK Parliament Scotland is a distinct legal jurisdiction. England and Wales form a single ‘Primary legislation’ is an Act of the the decision-maker felt that day? rights and European law in the Scotland Act and Scottish Parliament (also known as jurisdiction (although some laws differ Scottish Parliament (or 1998 has given the Scottish courts a much ‘statutes’) and the ‘common law’ as between England and Wales). Northern in the case of the UK Parliament). To avoid this, criteria for the exercise of a more direct role in scrutinising legislation developed and applied by the judiciary from Ireland is the third jurisdiction of the UK. power are likely to be provided by Scottish An ‘enabling Act’ is an Act which from the Scottish Parliament than is the case the historical approaches of the courts in Parliament. In addition, those powers Technically, there is no such thing as ‘UK sets out a legal framework for making for UK legislation. similar cases. secondary legislation. must be exercised in accordance with the law’. But much legislation applies equally across the UK jurisdictions. ordinary principles of the common law, ‘Subordinate legislation’, often called Uniquely in the UK, Scotland is a ‘mixed subject to judicial review by the courts Law can be found in statute (also known ‘secondary legislation’ or ‘delegated legal system’, meaning the common law legislation’, is legislation made by the (we return to judicial review and the The rule of law in the as legislation) and in the common law. also relies on legal principles collected by government or certain public bodies application of public law in Chapter 4). Scottish Parliament prominent lawyers of the past centuries Statute law is made by, or under the under powers delegated from parliament by an enabling Act. The most common A number of Acts of the Scottish known as the ‘institutional writers’. authority of, the UK Parliament and Protection of individual rights Parliament have been challenged in Scottish Parliament and the common law forms of subordinate legislation are the courts, including the Protection of These principles were themselves is developed by the judiciary. Scottish Statutory Instruments (SSIs) It is essential, if man is not to be Wild Mammals (Scotland) Act 2002 (to drawn from the surviving records of the (or Statutory Instruments (SIs) in the UK compelled to have recourse, as a last ban hunting of foxes with hounds), the developing legal systems of continental The development of both kinds of law can context). be informed by international law, which resort, to rebellion against tyranny and Damages (Asbestos-related Conditions) Europe and the mid-to-late Roman Empire. oppression, that human rights should be Scotland Act 2009 and the Alcohol are rules agreed by the UK with other protected by the rule of law.” (Minimum Pricing) (Scotland) Act 2012. states. This statutory law sits at the core of our So far, most challenges have failed; Some EU law has direct effect in the UK. Preamble, Universal Declaration of however, in 2016, the UK Supreme Other international law does not generally legal system. Acts of the Scottish Parliament Human Rights 1948 Court found the data-sharing provisions have direct effect in the UK unless explicitly and their UK equivalents are also known within the ‘named persons scheme’ in the incorporated. This is discussed further in as ‘primary legislation’ because they Children and Young People (Scotland) What we now term human rights law Chapter 6. Primary and subordinate are made by the parliament and generally and public law has developed through our Act 2014 to be in breach of Article 8 of the 44 cannot be amended except by the common law over a long period of time. ECHR. legislation parliament.45 Acts of the UK Parliament The process has quickened since the end of World War II ... the growth of the Much of an MSP’s time in Holyrood is cannot be struck down by the courts (in state has presented the courts with new spent scrutinising, debating and voting on line with the doctrine of Parliamentary challenges to which they have responded proposed legislation. Sovereignty) but the courts may issue by a process of gradual adaption and a Declaration of Incompatibility where development of the common law to meet current needs.” Convention rights are breached and may ‘disapply’ parts which conflict with EU Lord Toulson, Kennedy 43 law. Acts of the Scottish Parliament may be struck down by the courts if they are

Image © Scottish Parliamentary Corporate Body

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Stages in the passage of a Public Bill outwith the Parliament’s ‘legislative Royal Assent. Bills progress through a competence’, which includes where Making legislation work number of stages: First Stage (a vote on Scrutinising delegated Government Bill Members’ Bill Committee Bill Convention rights or EU law has been • The Procurement Reform (Scotland) the general principles of the Bill), Second powers breached. Act 2014 sets out the key principles Stage (consideration and report by the and general guidance for public appropriate committee(s) of Parliament) The Delegated Powers and Law Many Acts create a basic legal framework STAGE 1 procurement in Scotland. The detailed and Third Stage (debate of the whole Bill). Reform Committee will consider but don’t deal with the detail needed to scheme is set out in the Procurement The Second and Third Stage provide an Stage 1 inquiry and report (committee) the enabling provisions of any Bills make the law work in practice. Instead Regulations (Scotland) 2016, a piece of introduced into the Scottish Parliament. opportunity for detailed consideration and it gives Scottish Ministers (or their UK subordinate legislation originally drafted It will look at whether the extent to which by the Scottish Government. amendment of a Bill’s provisions.46 powers are delegated is necessary counterparts) and other bodies the power to and appropriate to ensure sufficient • Similarly, while the Court of Session create ‘subordinate legislation’: detailed Secondary legislation is afforded less parliamentary scrutiny is maintained. Act 1988 deals with the powers and and often technical rules which govern parliamentary time and is subject to less Scottish Government Bills are generally jurisdiction of the Court of Session, the General Bill Stage 1 debate accompanied by a Delegated Powers the actual operation of the law within the detailed procedural rules of court are scrutiny as a result. In general, there are principles falls NO (Parliament Memorandum designed to explain to the legal framework set by the enabling Act. laid out in an , which three ways in which subordinate legislation agreed to? Scottish Parliament why the government is subordinate legislation made by the Subordinate legislation is also used to give receives parliamentary approval. Under considers certain powers and discretions, Lord President. effect to some EU law that is not directly ‘negative procedure’ subordinate including the power to make delegated YES applicable. legislation cannot come into force until 28 legislation, are needed. Importantly, public authorities can only days after being placed before the Scottish A huge amount of subordinate legislation STAGE 2 The Committee will also consider all create subordinate legislation within Parliament. It becomes (or remains) law draft subordinate legislation to be laid is produced, far outweighing the amount Detailed consideration (committee) unless MSPs pass a motion to annul it Amendments before the Scottish Parliament. Where of primary legislation each year. This the limits set by the ‘enabling’ Act. If within 40 days. ‘Affirmative procedure’ the Committee deems it appropriate it will important source of law is often essential to the legislation exceeds the scope of the STAGE 3 subordinate legislation can become law draw parliament’s attention to any specific make the law work in practice. delegated power, the courts can strike Amendments Further detailed consideration (Parliament) issues it identifies. down the secondary legislation as unlawful only after the Scottish Parliament has voted (legislation like this is sometimes called to approve it. ‘Laid no-procedure’ ‘ultra vires’ meaning ‘beyond the (also known as ‘no procedure’ or ‘laid Motion to Debate on passing only’) subordinate legislation is subject to Bill powers’). NO pass Bill falls Bill (Parliament) technical scrutiny by Scottish Parliament. agreed to? Making legislation It does not require approval and cannot be The Scottish Parliament website provides annulled. YES detailed guidance on the passage of primary and subordinate legislation. A summary of Opportunity for statutory the passage of a Bill is set out below. challenge to the Bill Royal Assent All Acts of the Scottish Parliament start life as Bills. In order to become law, they must be approved by parliament and receive Act of the Scottish Parliament Diagram © Scottish Parliament (www.parliament.scot)

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The common law The role of judges • The ‘golden rule’: In some • Fundamental rights: Special circumstances, a phrase might Pepper v Hart considerations arise when there is a Common law in action The ‘common law’ is the body of law The judge’s role is to interpret, apply and legitimately have more than one literal If primary legislation is ambiguous direct conflict between a statute and • When Mrs Donoghue ordered a bottle created by the courts setting ‘precedents’ enforce the law passed by Parliament and and valid interpretation. In others, or obscure, the courts may refer to fundamental principles of the common of ginger beer in a Scottish café, she in individual cases. It is one of the core to develop and apply the common law. adopting its literal meaning might lead to Hansard and the Official Report when law. Examples of these principles include didn’t expect to find a dead snail inside. sources of law in each of the jurisdictions an absurd result. The golden rule allows interpreting the meaning of a particular the presumption in favour of open justice, When she fell ill after drinking the provision.49 Clear statements of purpose in the UK. Many principles are shared, Statutory interpretation judges to adopt the interpretation that is the right to equal protection by the law ginger beer, she sued Mr Stevenson, by the Minister responsible for steering the manufacturer. The House of Lords despite having been developed by different When courts interpret and apply statutes, reasonable in light of the statute read as a the Bill through Parliament may help and the right to freedom of expression. found that the manufacturer should courts and through the application of they are trying to reach the legal outcome whole. It is sometimes referred to as the the court to give effect to Parliament’s The courts will try to interpret any have taken reasonable care to ensure different precedents. which Parliament wanted to create. presumption that Parliament does not intention in passing it. For this reason, ambiguous statute, as far as is possible, in that the beer was safe to drink – and the intend to create absurdities. Ministers often take care to make clear a way that is consistent with the common common law of negligence was born.52 Generally, the common law and statute This isn’t always straightforward. statements about a Bill’s intended effect law principle in question. It is presumed • Prior to 2009, rape and other sexual law co-exist peacefully. There are many For example, some statutes use deliberately as it passes through Parliament. These Statutory interpretation statements are usually called ‘Pepper that Parliament intends to respect offences were governed by the important areas of common law where broad language, giving judges the flexibility common law. In 2001, the High Court in action v Hart’ statements after the case which fundamental rights. Any step to restrict Parliament has passed very little or no to interpret and apply the law, depending established the rule. However, the these core principles must be done of Justiciary overturned the common legislation – for example, in the law of courts will not treat such statements as law rule, said to originate with the on the facts of any individual case. At other Parliament criminalised the act of explicitly (see also Chapter 5). conclusive.49 The use of Explanatory institutional writer Hume, which meant negligence. Even within the same area of times legislation is simply unclear, or gives causing an obstruction “in the vicinity Notes to accompany legislation means • Parliamentary directions: Judges will that force was a necessary element law, statute and the common law often exist an unquantified degree of discretion to of” an air force station. One defendant that the courts are referring to Hansard also follow clear instructions on statutory in rape. This reflected a developing alongside, and complement, each other. For argued that because he had caused a 50 understanding of women’s reactions individuals who hold public power. and the Official Report less frequently. interpretation given by Parliament. example, the right to freedom of expression disruption inside an air force station he to non-consensual sex which meant Then again, even where the meaning of Examples of such instructions are is protected both as a fundamental principle hadn’t committed an offence. The court the old common law rule was the law appears obvious, its application interpreted “in the vicinity of” to mean “in included in the European Communities 53 • Implied repeal: Where two Acts of unsustainable. of the common law and by the Human to an unforeseen set of facts may be far or in the vicinity of”. A literal 1972 (‘ECA’) and in the HRA. Parliament clash, the later Act stands Rights Act 1998 (‘HRA’). from clear. would have had the absurd outcome of The courts have a statutory duty to frustrating the purpose of the statute – and the conflicting provisions of the interpret legislation in a way that is both In keeping with the principle of To help them, judges use a number which was to prevent interference with earlier one fall away. ‘Precedent’ is the principle that the 48 compatible with the law of the European parliamentary sovereignty, if there is any of common law rules of ‘statutory the armed forces in their work. decisions of higher courts create legal Some statutes have been considered to Union and in “so far as is possible” direct conflict between statute and the interpretation’, including: authorities which lower courts must common law, the statute will prevail. If be so constitutionally significant by the respects the individual rights guaranteed • The ‘literal rule’: Judges must start follow. It is how the common law develops. the courts develop a rule that the Scottish • The ‘mischief rule’: In some cases, the courts that the doctrine of implied repeal by the HRA (see also Chapters 5 and 6). with the ‘ordinary meaning’ of legislation. It creates consistency of practice and a Parliament doesn’t like, MSPs can legislate intended practical effect of a measure is may not apply to them. For example, it Judges are seeking to enforce the will Developing the common law common understanding about the scope 47 far from clear from the actual text of an has been suggested that the Bill of Rights to override it. On the other hand, of Parliament, and the first insight into of the law, but allows for evolution to Act. Judges may use the mischief rule to 1689, the European Communities Act Judges are also responsible for developing where legislation is vague or unclear in its the will of Parliament is the ordinary meet changing practices. identify the problem that the statute was 1972, the Human Rights Act 1998 and the common law. In areas not governed by application, the common law can help fill meaning of the words which Parliament trying to remedy and interpret it in a way the various devolution statutes can only statute, judges maintain the application and Precedent only operates within gaps, either unplanned or unanticipated. We has approved. cover these rules of statutory interpretation that meets the intention of Parliament. be repealed expressly.51 interpretation of the rules of common law. jurisdictions. Scottish courts are not bound in some more detail, below. by the decisions of English courts (except the Supreme Court of the UK considering

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Chapter 4: Public law and judicial review

a Scottish case). But the legal systems and What about In some countries, international law is Every day, public bodies, including made by public bodies acting under the SUMMARY many laws are so similar that it is very international law? automatically treated as part of the domestic Ministers in both the UK and Scottish delegated authority of the UK Parliament or unusual for any significant difference to legal system (these are called ‘monist’ Governments and local authorities, take a Public law operates as a check on the Scottish Parliament – can be struck down emerge and the Scottish courts frequently International treaties are agreements systems). The UK is not such a system – variety of decisions and perform a range of abuse of public power. In practice, this by the courts if they breach the principles refer to decisions of the English courts.54 between countries that are legally binding it is a ‘dualist’ legal system – which treats public functions which impact means that public decisions must be of public law. It is presumed that Parliament lawful and follow a fair procedure. in international law. These might be bilateral international and domestic law as two on constituents’ daily lives. intends these important delegated powers agreements between the UK and just separate legal orders. That means that before If the work of a public body is challenged, to be exercised lawfully. Public bodies must respect public law one other state. For example, extradition international treaties have any effect they must the courts may conduct Latin in the Law principles designed to ensure that their However, the activities of the UK treaties typically set out the process for be made part of domestic law by Parliament. a judicial review. Court judgments set out the reasons for actions are lawful and that they do not Parliament itself are not subject to judicial transferring suspected criminals between Judicial review is not concerned the court’s decision. Different parts of the By contrast, customary international law abuse their power or neglect their duties. review and Acts of Parliament cannot be the UK and other countries. Or they might with whether a decision was right, judgment have different effects. The part is regarded as being a source of law. Customary ruled invalid by judges exercising judicial be multilateral and lay down obligations For MSPs, public law can provide a helpful but whether it was lawful. which explains the legal rules on which international law can be considered by our review. At most, the courts can make a the decision is based is still called by its for a much wider group of countries. For starting point for the scrutiny of the work courts and, if there is no wider constitutional Judicial review is a last resort and ‘declaration of incompatibility’ Latin name – the ‘ratio decidendi’. Under example, the United Nations exists because of public agencies, civil servants and problem, may be treated as part of our law. claimants have to bring a claim promptly. in some human rights cases and can the doctrine of precedent, this part of the of a single treaty agreed to by most nations Ministers alike. It can also help shape the decision is binding on lower courts. ‘disapply’ primary legislation if it is of the world. The ‘presumption of compatibility’ scope of statutory powers and duties. is a common law rule for the construction contrary to EU law (see Chapters 5 and 6). The other parts of a judgment are known Some international treaties may create If public bodies act outside the bounds What is judicial review? as ‘obiter dicta’. This might include the of statutes. When construing a statute, By contrast, because the Scottish Parliament dispute resolution processes which may be of public law, their decisions can be judge’s views on the current state of the the presumption is that the UK or Judicial review is a remedy of last resort. has express limits on its legislative law, or on what the decision might have binding on signatory states. For instance, challenged in court through a process Scottish Parliament intended to respect The courts will not look at a public decision competence by reason of section 29 of been if the case had slightly different the European Convention on Human Rights called ‘judicial review’. its international obligations. In the event if there is another means of putting right the Scotland Act 1998, acts of the Scottish facts. This commentary is not binding, but created the European Court of Human it can be persuasive. of ambiguity, the interpretation which is something which has gone wrong. Parliament are not law if they are found Rights; and some trade agreements provide consistent with the UK’s international law Public law is not at base about rights, to be outwith legislative competence. As a trans-national process of arbitration to Which decisions can be challenged? obligations is preferred. even though abuses of power may and a result the Court of Session and the UK create a single, simplified route to resolving often do invade private rights; Many different kinds of public decisions 55 Supreme Court are empowered to set aside disputes. More detail on international law is provided it is about wrongs – that is to say misuses are subject to judicial review. Any type in Chapter 6. of public power.” any such Act in whole or in part. International law also includes rules of of action or decision can be subject to the 56 ‘customary international law’. These Sedley LJ, Dixon courts’ scrutiny, as can failures or refusals are rules whose legal force develops over time. to act. The key test for whether a decision A rule becomes binding when it is (a) followed can be challenged is generally to ask if the consistently by many countries for many relevant decision maker was exercising a years; and (b) countries have followed the rule ‘public function’. in question because they treat it as law. An Delegated or secondary legislation – rules, example of a rule of customary international regulations or other statutory instruments law is the prohibition on torture.

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What kind of review? What are the ‘grounds’ for Illegality Applying prison rules to prevent a Wednesbury Unfairness Judicial review doesn’t give a judge the judicial review? If a public body misinterprets the law prisoner meeting with a journalist unreasonableness A challenge can be brought if a public body was inconsistent with the common law power to step in and have another go at when making a decision, uses a power for has made a decision without observing There area number of reasons why a protection offered to free expression In Wednesbury itself, a local council making a disputed decision. A judicial decision may be unlawful. These reasons are a purpose it was not designed for, or acts and the principle of legality.58 decided that cinemas would not be the proper procedure or where a decision review claim is not an appeal on the called ‘grounds’ for judicial review: ‘ultra vires’, then it has acted unlawfully, allowed to admit children under 15 on breaches the ‘principles of natural justice’. merits of a decision, and the judge will and its decision may be set aside for Sundays. In a challenge to the decision, Express procedural requirements not substitute his or her own view for that • ‘Illegality’: A decision-maker might ‘illegality’. Ultra vires means beyond its A judicial review can also check whether local cinema owners argued that it amounted to an irrational restriction on of the decision maker. make a mistake in law, might try to do powers – doing something it doesn’t have a public body has complied with its duty Failure to comply with an express under the HRA to respect individual rights their licence. Rejecting the challenge, the something which it has no power to do, the power to do. A decision may also be court held that so long as the council had procedural requirement – whether This is particularly important when the or might exercise their power unlawfully. unlawful if it is so unfair that it amounts to (see Chapter 5). A judge can also look at not reached a decision so unreasonable statutory or self-imposed – is the clearest relevant decision maker is a specialist This includes a failure to follow EU law, an abuse of power. whether public decisions breach European that no reasonable body could ever example of procedural unfairness. These in their field with a great deal of experience have come to it, it had discretion to set including EU Directives (for so long as Union law or the European Communities can include, for example, a right: which the court does not have (a medical the UK remains in the EU), or to comply Act 1972 (see Chapter 6). whatever limitations it saw fit. This very professional, for example). In all cases, with the requirements of the Human In the 1980s the Strathclyde Regional high threshold was not reached, and • To be given notice of proceedings; so the restriction on cinema entry was Rights Act 1998 (‘HRA’). Council was required by statute to Irrationality the concern for the court is not whether provide a supply of “wholesome water”. allowed to stand. • To be heard or consulted before a a decision was right, but whether it • ‘Irrationality’: Where the decision- It had been co-operating with the Health A decision can be successfully challenged decision is taken; and/or was lawful. maker has made an unreasonable Board in the progressive fluoridation of if it is ‘irrational’. A decision is irrational the water supply. However, the Court However, the ‘intensity of review’ will • To be given reasons for a decision decision or failed to take relevant if no reasonable decision maker could held that “wholesome” meant “free from depend on the type and circumstances of after it has been made. matters into account. justify it (often called ‘Wednesbury contamination and pleasant to drink.” the challenge. If a decision interferes with Judicial review or ‘appeal’ The local authority therefore did not have unreasonableness’, after the case • ‘Procedural unfairness’: Where the fundamental common law rights of an Greenpeace successfully challenged a the power to add fluoride to water to that established the principle).59 When it creates a new power, Parliament the decision-maker has failed to follow improve the general dental health of the individual or a group of people a judge may decision to proceed with the building of new nuclear power plants. The Secretary may make a decision or an action subject relevant procedures or has shown bias. population.57 This is a high threshold and it is relatively look more closely at the decision taken and to ‘statutory appeal’. Unlike judicial of State had set his own rules for public review, an appeal court or tribunal may These traditional labels for the grounds for rare for the courts to find that it has been can expect a higher standard of justification engagement. The court considered the met. One judge has said that it should from the public body. This is sometimes quality of the consultation process and have the power to retake a decision judicial review are not rigid, and individual Where a discretion – including a power to from scratch, rechecking the law and the generally apply only “to a decision which is so called ‘anxious scrutiny’ in the case-law. decided it was inadequate. The decision cases can fall under more than one category. make secondary legislation – is exercised evidence, and substituting their own view outrageous in its defiance of logic or of accepted Both the original decision maker and the had to be taken again, with the benefit of for that of the original decision-maker. For example, a decision-maker who reaches in a way which is inconsistent with the fuller engagement by the public.61 moral standards that no sensible person who had court may be required to exercise this a conclusion without all the necessary facts fundamental principles of the common law, applied his mind to the question to be decided extra-close scrutiny in such cases. might act both illegally and unfairly. this will also be unlawful. could have arrived at it”.60 A number of actions might render a decision both illegal and irrational. These might include failing to think about matters relevant to the decision, thinking about things which are irrelevant, or making a decision based on plain errors of fact.

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this kind of expectation can be grounds Whether applying a ‘proportionality’ However, claims cannot be brought by When a public authority has for review. test or applying ‘anxious scrutiny’ to the someone who simply does not like a Watch the clock Who pays for a promised to follow a certain procedure, decision or who disagrees with the judicial review? it is in the interest of good administration question of whether a decision is reasonable, Applications for judicial review must 69 that it should act fairly and should these decisions are ones where the courts policies of the decision maker. be made promptly and in any case The legal and other costs of judicial implement its promise.” can play a special role in checking whether within three months of the challenged A home for life? review claims are generally decided in the administrative act.71 This time keeps 62 public decisions respect individual rights. same way as civil claims, namely that the Lord Fraser, Ng Yuen Shiu running even after the pre-action letter is Ms Coughlan – a person with severe MPs and MSPs may consider this when loser pays the costs of the winner, and disabilities – challenged a local authority’s Who has sufficient interest? sent. creating new powers or duties for public the conduct of the parties A fair hearing decision to close her residential care is taken into account. home, on the basis that she had been bodies. The Christian Institute and three other Public bodies must also respect the common promised that the residence would be interest groups were found to have • If the decision-maker thinks its decision A person who brings a judicial review her home for life. The court held that Ms sufficient interest in public policy relating faces the risk that they might have to pay law principles of ‘natural justice’. These Coughlan had a legitimate expectation Proportionality and to family issues to challenge the ‘named is right or refuses to change its mind, the claimant can then ask for ‘ ’ all the costs of the public body if they’re require decision makers to act impartially that she would be allowed to stay in the the common law person’ provisions of the Children and permission wrong. Legal Aid may be available to 70 72 and give the parties involved a fair hearing. care home, and that for the council to go Young People (Scotland) Act 2014. to bring a claim for judicial review. claimants who qualify in terms of the civil back on this promise would be so unfair The Supreme Court considered a You must have a ‘real prospect of legal aid rules. This can include a right to be heard and as to amount to an abuse of power.65 challenge to the Home Secretary’s success’ and ‘sufficient interest’ to a right to receive reasons for a decision. attempt to strip a suspected terrorist of his How does judicial review work? get permission. A decision can be challenged if a public British citizenship. The court noted that – when looking at an interference with Judicial review is a three-stage process: • If the court considers there is a case authority has exhibited ‘real or apparent Proportionality fundamental rights, such as citizenship – What can the court do? bias’. It is very rare for a public body to • First, decision-makers must be given to answer, there will be a full judicial In some claims involving EU law or the anxious scrutiny and proportionality tests If a challenge succeeds, the court has a wide be proved to be biased, but a decision may may produce very similar results.66 an opportunity to correct their mistakes. review hearing. HRA, the court will look at whether a range of options. None of these ‘remedies’ be unlawful if there is enough evidence to Generally claimants should write a particular decision is ‘proportionate’. are automatic, but are granted at the show a ‘real possibility’ that it was.63 formal letter setting out a summary of This involves the judge asking whether the Who can bring a judicial Permission stage discretion of the court: Decision-makers should be above reproach their concerns. In rare, urgent, cases, impact of a decision is proportionate to and a real appearance of bias is enough to review? for example, if someone is due to be There can be no judicial review without • Reduction of a decision: The court 64 its aim. The court can check whether the deported, this step might not be the court’s permission. This check is can tell the decision-maker to re-take undermine their authority. In other words, A person or body must have ‘sufficient public authority has gone further than is enforced by the court. intended to avoid timewasting challenges the decision lawfully (commonly called this will be considered from an objective interest’ in a decision to bring a claim for to public decisions.73 Judges can think necessary to serve the public interest ‘quashing’ the decision). standpoint by a court, which will generally 67 about permission without hearing (see Chapters 5 and 6). judicial review. Sometimes this interest ask how an informed neutral observer will be obvious, for example if they have arguments, ‘on the papers’. If they The public body can lawfully arrive at the would view the particular conduct. In cases involving fundamental common refuse, the claimant can ask for an oral same conclusion or result a second time, been refused asylum. However, a claimant hearing. 74 law rights, the courts have resisted adopting but it must follow the proper process and In some circumstances there will be a does not have to have a financial or legal a general proportionality test. However, consider all evidence reasonably in doing so. ‘legitimate expectation’ that a public interest in the decision, nor does it need there is some indication that courts may in The court might give guidance on the law authority will act in a certain way. For to be the most obvious challenger. substance apply a proportionality test when which the decision-maker needs to follow. example, the public might legitimately deciding whether a decision is lawful. Community groups and NGOs have expect to be consulted before a long- brought judicial review claims on the basis standing practice is changed. A breach of that they represent the public interest.68

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Chapter 5: Rights and the individual

matters, it is the responsibility of the (c) how the Convention is applied, • A declaration: The court can make a England, Wales and for Northern Ireland, and in subsequent SUMMARY devolved institutions to ensure protection principally in Scotland, but also in the UK ‘declarator’ that the decision-maker got Northern Ireland judicial review proceedings the importance Scots law protects individual rights in a of the rights they enshrine.80 While the as a whole, and it wrong and acted unlawfully, explaining of paying “particular attention” to it has been range of different ways, including through UK Government ratified, for example, the (d) the role and purpose of the European why. This remedy might mean that its The law on judicial review in England and noted.78 The Northern Irish courts also the common law, legislation and the UN Convention on the Rights of the Child European Convention on Human Rights. Court of Human Rights (‘ECtHR’ or ‘the decision stays in place because quashing it Wales and Northern Ireland is very similar. appear to have taken a slightly different (‘UNCRC’), matters such as education and Strasbourg Court’). wouldn’t be appropriate. If a public body The grounds of review are broadly the approach to the administrative acts that Both the UK and Scottish Parliaments children’s health are devolved to Scotland. has changed its decision while the case was same and the courts refer to each other’s are subject to judicial review.79 have also provided further protection for The Scottish Parliament has therefore One important piece of Westminster going on, the judge might use a declaration 75 a broad range of rights in other primary case law. The location of the public body legislated for a duty on the Scottish legislation, which supplements the anti- to give clearer guidance for future cases legislation, including the right to equality, determines where a challenge should start. Wales Government to ensure that the UNCRC is discrimination right in the Convention, is and other public bodies. children’s rights and the rights of mental As England and Wales share a legal system, health patients. implemented in Scotland.81 also explained at the end of the Chapter. • Compensation: Compensation or England This is the Equality Act 2010. the situation for judicial review in Wales There is also a wide network of statutes ‘damages’ cannot be sought in a claim In England, the High Court deals with is identical to that in England, except for of both the UK and Scottish Parliaments for judicial review. However, a judge can most judicial review cases, though the Common law rights ‘devolution issues’. that work to protect human rights. For hear other claims where compensation Upper Tribunal also has jurisdiction in, for Introduction Before we look at the ‘what’ and ‘how’ of is available at the same time, including example, the Equality Act 2010 prevents example, immigration cases. As in Scotland, Devolution issues There is no one document where you the Convention, it is important to recognise a claim that a public authority has been discrimination on the ground of protected an applicant must obtain permission can find all of the human rights and civil that Scottish courts protected individual negligent, or a claim for damages under Both the Scottish Parliament and the characteristics, such as gender and race, from the court before proceeding, and that people living in Scotland enjoy. the HRA, for example. Scottish Government are subject to limits and the Forced Marriage (Protection and rights well before 1999 through Scottish in order to get permission, the applicant on their legal competence to legislate or to The European Convention on Human Jurisdiction) (Scotland) Act 2011, which common law. For an individual to seek compensation must have an arguable case and show carry out administrative acts. Those limits Rights (‘the Convention’), however, does protects people from being forced into Indeed, in 1949, Lord President Cooper’s in connection with a judicial review is sufficient interest. As in Scotland, there are found in the Scotland Act 1998, sections provide for a wide range of individual, marriage. view82 was that “it is still the common relatively uncommon. is a three month time limit for making 29 and 57(2). ‘Devolution issues’ are family and collective rights. law of Scotland that … defines all the application. As discussed above, once challenges which require the court to Additionally, some rights, which would permission is granted, the principles which Since the UK became the first country today be defined as human rights, have long the main rights and duties of the Scottish consider whether the devolved legislatures 83 the courts apply in determining applications to ratify the Convention in 1950, the UK been protected by judge-made common law. citizen.” For example, the long-recognised or executive administrations have acted rule that a warrant to search a property for judicial review are virtually identical in within the boundaries of their devolved Government has also agreed to treaties These rights are discussed, debated and Scotland and England. which further protect the rights of women; must be specific in terms of the object powers or ‘competences’. This can also applied every day in Scottish courts, within of the search protects individuals against include checking EU law and human rights children; and disabled people; help stamp Northern Ireland government and other public bodies, and in arbitrary intrusions in the home by police.84 compatibility (see Chapters 5 and 6 below). out racism; protect the rights of refugees the Scottish Parliament. Although many familiar public law questions Such challenges may be made in Scotland, fleeing persecution; and recognise the More recently, the UK Supreme Court are routinely raised in Northern Ireland, Wales or Northern Ireland. international prohibition on torture (see This Chapter will look at: held that the common law should be “the the highly political context has created Chapter 6). (a) rights at common law, natural starting point in any dispute” involving some unique elements to judicial review.76 civil liberties or human rights.85 Thus the The UK Government agrees to such (b) what rights are protected and reinforced The (amended) 1998 treaties on behalf of the whole of the UK, common law might protect human rights in 77 by the Convention, has been described as a ‘constitution’ but where those treaties address devolved new ways not required by the Convention

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or it may already protect rights so that of Campbell and Cosans. Two mothers from These rights require to be implemented Articles 8 to 11, and include important The European Convention on Convention rights 94 courts do not have to directly apply the Bishopbriggs and Cowdenbeath did not Human Rights in different ways. Public bodies may be public interest goals such as the prevention Convention.86 want their children to be punished by the Right to life (Article 2) required to refrain from doing something and detection of crime and the protection belt at school. They, like many others, were The Convention was the fundamental legal (called a ‘negative obligation’). of the rights of others. A limitation will not The courts use the common law to protect unable to secure a remedy at home but component of the European response to Prohibition of torture and inhuman or Sometimes, however, to protect a right usually be proportionate if there are less degrading treatment or punishment individual rights in a number of ways: 92 won their case in the ECtHR, which said fascism and the horrors of the Second World (Article 3) properly, public authorities might have intrusive means of meeting the same goal. • Acts of public bodies or officials can that parents had a right under Article 2 of War. UK Ministers, diplomats and lawyers to take steps to make sure that a right Finally, where a right is limited in this be challenged on the basis that the Protocol 1 to exempt their children from were central players in its development. Prohibition of slavery and forced labour actually works in practice (a ‘positive (Article 4) fashion, any such limitation must be act was founded on an error of law. this punishment. In due course, this decision Indeed, it was a Scottish Lord Chancellor, obligation’). prescribed by a rule of law which is For example, the Highland Council led to the abolition of physical punishment Sir David Maxwell Fyfe (a prosecutor at Right to and security (Article 5) For example, the right to life means public sufficiently clear. successfully challenged a decision to in Scottish schools. the Nuremburg Trials), who chaired the Right to a fair trial (Article 6) bodies must not kill people unlawfully withdraw the sleeper rail service to Committee responsible for drafting the Where rights are recognised in the (a negative obligation). However, any Fort William.87 Convention. No punishment without law (Article 7) common law, they offer valuable protection. suspicious deaths must also be properly • The acts of public authorities remain However, it is not clear that the common The Convention is not an instrument of Right to respect for private and family life investigated and a system must exist to subject to judicial review, tested against law protects every right guaranteed by the the European Union (‘EU’), but one of the (Article 8) deter and punish those who do take others’ a standard of legality, rationality88 or Convention. In some cases the protection Council of Europe. The Council of Europe Freedom of thought, conscience and lives unlawfully (a positive obligation). procedural propriety, where those offered may be less effective. is an older institution established in the religion (Article 9) acts interfere with fundamental rights aftermath of the Second World War. Made Are Convention rights absolute? 89 Freedom of expression (Article 10) protected by the common law. up of 47 Member States, it is larger than The rights in Articles 8 to 11 ECHR are • Theoretically, in an extreme case As late as 2010, there was no right in the EU and includes many non-EU States Freedom of assembly and association not ‘absolute’; they are ‘qualified Scots law to receive legal advice when (Article 11) where an Act of the Scottish Parliament (including Russia), but EU countries are rights’. This means that they can lawfully being questioned by police. When required to comply with the minimum contradicted “fundamental rights or the Peter Cadder took this issue to the UK Right to marry (Article 12) be limited where it is necessary to consider rule of law”, it could be struck down at Supreme Court, it identified “clear and standards of the Convention. the competing rights of other people or the Right to an effective remedy (Article 13) common law.90 consistent” case law by the ECtHR that The Convention rights are mirrored in, wider community. For instance, freedom of this was a violation of the Convention.93 expression is sometimes limited in order to Therefore, thanks to the right to fair trial and supplemented by, the EU Charter of Right to enjoy each of these rights without However, the protection of the common law discrimination (Article 14) prevent incitement to violence. has limits. This is demonstrated by the fact in Article 6 ECHR, you have the right Fundamental Rights (see Chapter 6). of access to a lawyer prior to being Right to the peaceful enjoyment of These limits are only lawful if they are that it has been established that the right interviewed. This allows every person What are the Convention rights? property (Article 1, Protocol 1) to vote is not one that exists at common detained by the police the opportunity ‘proportionate’ to a ‘legitimate aim’. 91 The rights in the Convention and its law, though it is thankfully protected in to fully understand the legal implications Right to education (Article 2, Protocol 1) This means that the seriousness of the legislation. of their arrest and being questioned by additional protocols, which the UK has impact on individual rights must be weighed police, and what their rights are in that agreed to protect, are now central to Right to free elections (Article 3, Protocol 1) against the public interest goal which any But what happens when neither statute context. the protection of human rights and civil limitation seeks to serve. nor the common law is able to protect a liberties in Scotland, the UK and across Legitimate aims are identified in each of human right? A good example is the case Europe. These rights are shown in the box.

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Some of these rights, however, have express Some Convention rights are ‘non- Domestic legislation, passed by Westminster Example of a qualified right Derogation or inherent limits. The right to liberty, for derogable’. These include the right The Convention in action or the Scottish Parliament, was required for States are able to ‘derogate’ from (meaning, Article 10(1) protects the right to example, expressly allows for detention to life and the prohibitions on torture courts in the UK to apply the Convention as expressly limit) some Convention rights in A Scottish prisoner who was in a two- free expression: in defined circumstances, including where and slavery.98 person cell challenged his lack of integral part of domestic law. It has become part of times of war or other public emergencies there is a “reasonable suspicion of having sanitation, which had required him to “slop Scots law in two different ways. “Everyone has the right to “threatening the life of the nation”.96 For committed an offence” and “after conviction by a How is the Convention out”. This was deemed to be “degrading freedom of expression. This right Scotland’s purposes, it would be the UK treatment” under Article 3 ECHR. The First, through the Scotland Act 1998 shall include freedom to hold competent court”. applied in Scotland? Court of Session therefore ordered the opinions and to receive and impart Government that would do this as the (‘the Scotland Act’), which applies to the to prevent the competences devolved to Scotland. information and ideas without Member State to the Convention, by Introduction practice of slopping out and awarded the interference by public authority Balancing rights? notifying the Council of Europe. prisoner damages.100 Second, through the Human Rights Act and regardless of frontiers…”. The UK legal system is a ‘dualist’ one, 1998 (‘HRA’), which applies across the Deciding whether a limitation is For example, after 9/11, the UK derogated Two long term prisoners convicted of meaning that while the Convention is whole UK. Through these Acts of the UK Article 10(2) explains its limits: ‘proportionate’ or necessary can mean from the right to liberty to provide for serious crimes challenged the Scottish binding on the UK in international law, the Parliament, the Convention has developed looking at competing rights and interests the detention of foreign terrorist suspects Independence Referendum Act 2013 “The exercise of these freedoms, in some detail. This balancing exercise UK Government must do more than ratify because it did not allow them to vote in into a fundamental component of human since it carries with it duties and without trial as part of its counter-terrorism is performed by the UK and Scottish it for it to be effective in domestic law. Scotland’s Independence Referendum in rights law in Scotland and the UK. responsibilities, may be subject Governments, their civil servants, local strategy. The House of Lords struck down 2014. Article 3, Protocol 1 ECHR requires to such formalities, conditions, authorities, the Westminster and UK The two important international obligations States to “hold free elections … under restrictions or penalties as the secondary legislation which provided The Scotland Act 1998: Parliaments and, importantly, by judges for derogation as it only applied to foreign on the UK are: conditions which will ensure the free are prescribed by law and are throughout Scotland and the rest of the expression of the opinion of the people Devolution and Convention necessary in a democratic society, nationals suspected of terrorism. Such limits UK. • Article 1 ECHR, which requires the in the choice of the legislature.” Both rights in the interests of national security, must be no more than strictly required by UK to make sure that everyone within Houses of the Court of Session101 and the territorial integrity or public safety, 102 This involves looking at evidence of how the circumstances – and the fact that British its “jurisdiction” enjoys each of the rights UK Supreme Court found that as the The Convention has a particular for the prevention of disorder or seriously a measure will affect someone’s terror suspects were not subject to the same ECtHR had decided that this rule did not constitutional significance to Scotland.104 crime, for the protection of health rights in practice; how much this change it guarantees. This generally applies to apply to referendums – only parliamentary or morals, for the protection of will impact on other people or the public restrictions showed that there were other, people in the UK, but can include rare general elections – the disenfranchisement Convention rights apply more forcefully to the reputation or rights of others, interest; and whether less intrusive, ways of combating terror circumstances where the UK exercises of the prisoners in the referendum was the devolved institutions than they do to for preventing the disclosure of there are less intrusive ways to solve threats. control over an area or an individual lawful. the UK Parliament. The Scottish Parliament information received in confidence, a problem. or for maintaining the authority and overseas (for example, to some The police policy of ‘containing’ or ‘kettling’ cannot make any law which is outside of impartiality of the judiciary.” For example, Ms Eweida complained that The rule of law is inherent in these conduct by UK troops).99 protesters was challenged as a violation of its legislative competence. A law will be and other articles of the Convention, a ban on her wearing a small the Article 5 right to liberty, after a number outside of the Parliament’s competence if it and to be lawful an interference • Article 13 ECHR, which requires of G20 demonstrators were detained for cross to work was a violation of her is incompatible with the Convention. right to religion. She won. There was with Convention rights must also be that effective remedies are available several hours without food or access to compatible with the rule of law..” no evidence of a risk to the public or when things go wrong. For instance, toilets. After challenges in the UK and of any significant impact on anyone else. Strasbourg, judges clarified that the policy Lord MacFadyen, Calder, 200697 the effective criminal prosecution of Other Convention rights are referred to It was disproportionate for her employer was proportionate and lawful, if certain 95 murder is considered one necessary as ‘absolute rights’. For example, under to prevent her from wearing it. safeguards were in place, including a effective remedy for the protection of time-limit, provision for release in some no circumstances can a State infringe the the right to life (Article 2 ECHR). circumstances and access to water and prohibitions on torture or slavery. toilet facilities.103

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The public duty to respect rights The Scotland Act 1998 The Scotland Act in action The role of the Scottish The Human Rights Act The Human Rights Act Parliament 1998110 The Act creates a duty on all public Any Act of the Scottish Parliament is The first case in which a provision of • Public authorities must act in a way The Scottish Parliament has an important After a number of high-profile cases – authorities, including the devolved not law - that is, it would be immediately an Act of the Scottish Parliament was that respects our rights unless a institutions of Scotland, Wales and Northern struck down by the courts - if it is deemed ‘struck down’ under the Scotland Act was function in protecting Convention including the ‘gays in the military case’ – statute passed by the UK Parliament 106 Ireland, to act compatibly with Convention to be incompatible with a Convention right Salvesen v Riddell. The Agricultural rights. All Bills presented to the Scottish which highlighted the limits of the common stops them from doing so (Section 105 114 (Section 29(2)(d)). This is different from Holdings (Scotland) Act 2003 was outside Parliament by anyone entitled to do law, 111 Parliament passed the HRA. It 6 HRA). rights. This is designed to make sure Acts of the UK Parliament (see below). the legislative competence of the Scottish so must state that the Bill is within the protects Convention rights on a UK-wide individuals’ rights are respected without Parliament. This was because it violated • Courts must read and apply all any need for the courts to get involved. The Scottish Government cannot make Parliament’s legislative competence108. As basis. legislation ‘in so far as is possible’ the rights of some landlords of agricultural If a public body falls short, a claim can be secondary legislation or do (or fail to do) tenancies to the peaceful enjoyment of we know, this means, among other things, in a way that respects Convention The impact of Convention rights on anything else that is incompatible with their possessions (Article 1, Protocol 1 that the Bill should be compatible with the rights (Section 3 HRA). considered by the courts and a judge can Convention rights (Section 57(2)). ECHR). However, the court made an legislation passed by the UK Parliament overturn a decision or direct a public body Convention. The Presiding Officer must • Courts have no power to ‘strike order suspending the effect of its decision under the HRA is different to their to stop acting unlawfully. Damages are Where the compatibility with a also give his or her opinion on whether the down’ Acts of the UK Parliament to allow the incompatibility to be resolved interaction with Scottish legislation. Acts of available under the HRA, but compensation Convention right of an Act of Parliament by the Scottish Parliament. Bill is compatible.109 which breach Convention or an act or omission by the Scottish the UK Parliament cannot be struck down rights. Instead, they can issue a is generally fairly limited. Government is considered by a court, The latest ‘striking down’ was in Christian Scottish Parliamentary by the courts, which must only interpret ‘declaration of incompatibility’, this is known as a “devolution issue” Institute and others v Lord Advocate.107 them, ‘so far as it is possible to do so’, in a way which says that the statute is ‘Public authority’ includes bodies such as Committees incompatible with Convention rights. (Schedule 6, paragraph 1). In this case, the UK Supreme Court which is compatible with the Convention.112 government departments, local authorities decided that certain provisions of the Whether to change the law – or not and the courts. It also covers public However, secondary legislation which can’t – remains a matter for Parliament ‘Named Person’ scheme were a violation Various committees scrutinise legislation hospitals, prisons and schools, for example. of the right to private and family life. and consider wider societal issues be read in a way that respects Convention alone (Section 4 HRA). Such bodies in Scotland fall within devolved The Scheme provided for information against human rights standards. Such rights can be struck down by the courts. about ‘relevant changes in a child Committees include the Equalities and • Courts must ‘take into account’ competence (health, criminal justice and or young person’s life’ to be shared Human Rights Committee, the Justice As a result, courts have a duty to try to the case law of the ECtHR. They education, respectively). between healthcare, education and Committee and the Social Security interpret even unambiguous legislation are not required to follow it. They are not bound by the HRA to agree other personnel of public authorities. Committee. in a way that respects Convention rights. The duty also applies to private bodies The provisions could not be justified with the ECtHR, and all lower courts when they perform ‘public functions’. So, However, there are limits to this power. The must follow the UK Supreme Court’s under the Article 8(2) ECHR balancing For example, the Equalities and Human the public duty can, in some circumstances, requirements as they were deemed Rights Committee is considering human courts cannot give express statutory words rulings even if it adopts a view which is different to that of the Strasbourg apply to publicly funded providers of social not to be “in accordance with the law” rights implications of Brexit in this new a meaning inconsistent with their plain Court (Section 2 HRA). 115 – they lacked clarity and safeguards to session of Parliament. language or one which would ‘go against the housing and some private health facilities. protect children’s data. In response, the grain’ of the statute.113 Scottish Government is reviewing the Like all of the Scottish Parliament’s relevant provisions of the Children and Committees, they can call government Young People (Scotland) Act 2014 so Ministers and public bodies to Declarations of incompatibility give evidence and can make as to make the necessary changes and Where an Act of the UK Parliament cannot has delayed implementing the ‘Named recommendations. Person’ scheme. be read in a way that is compatible with Convention rights, the courts may make a ‘declaration of incompatibility’.116

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When this occurs, the Act remains in force The Future of the Human Rights The European Court of violation from happening again – often this The national human rights A conversation about rights? but the incompatibility is brought to the Act means changing the law. attention of Parliament. However, there institutions Human Rights is no legal obligation on government to The HRA has been subject to criticism, The European Court of Human Rights Taking into account judgments from The Strasbourg Court decided that prisoners serving a ‘whole-life tariff’ – change the law – in this way, the HRA The Equality and Human Rights Commission including by the current UK Government, (“the ECtHR” or “Strasbourg court”), based the Strasbourg court is an independent statutory body responsible serious offenders with a life sentence, which has made a manifesto commitment in Strasbourg, interprets and applies the respects the legislative sovereignty of for protecting and promoting equality and UK courts must “take into account” where a judge has confirmed that they to publish proposals for a new British Bill of provisions of the Convention. The UK – should spend their whole life in jail – Parliament. human rights in Great Britain. It has a range judgments from the ECtHR (Section 2, of legal powers, including running formal Rights during this Parliament. This would together with each of the other States of the should have an opportunity for their Declarations of incompatibility are HRA). These decisions are not directly inquiries and investigations, intervening in involve repealing the HRA. Council of Europe – has agreed to “abide by sentence to be reviewed. Without one, a extremely unusual (only 20 final litigation and bringing some judicial review binding on UK courts. whole-life term would constitute inhuman the final judgment of the court”.120 declarations have been made since the HRA proceedings on its own initiative. The EHRC and degrading punishment (Article 3 The Scottish Government opposes this In practice, UK courts will follow the ECHR). The Court of Appeal in England was brought into force).117 has specific duties under the HRA and the The ECtHR is made up of judges from Equality Act 2010, set by Parliament. and it is not yet clear how these proposals Strasbourg Court’s decisions if they are not: and Wales considered this judgment and would be reconciled with the devolution each of the States of the Council of Europe. said that the existing law – interpreted Fast-track ‘remedial orders’ The Scottish Human Rights Commission “…inconsistent with some fundamental settlement. The HRA is reserved to the UK Nominations are made by individual States, under the HRA to comply with Article (‘SHRC’) was created by the Scottish substantive or procedural aspect of [UK] law 3 – provides for sufficient opportunity to The UK Government may respond to a Parliament and reports to it. The SHRC has Parliament, but human rights are not. As we but judges are elected by the Parliamentary and whose reasoning does not appear to overlook ask for early release to be considered. declaration of incompatibility through general functions and duties concerning have seen, the rights in the Convention are Assembly of the Council of Europe (which or misunderstand some argument or point of Thinking about its position again, with a fast-track ‘remedial order’. This human rights issues that relate to devolved relevant to a variety of devolved matters. includes MPs from each of the countries in the benefit of the Court of Appeal’s 121 is a procedure whereby a violation of matters, including promoting human rights the Council). principle”. explanation of the way in which UK law in Scotland. In particular it: encourages Convention rights can be fixed quickly by works, the Strasbourg court has now best practice; monitors law, policies and Since 1960, the UK has allowed individuals This means that courts in the UK can refuse agreed.123 Parliament.118 It allows the government to practice; conducts inquiries into the policies to take cases against it to the Strasbourg to adopt the ECtHR’s approach in cases use secondary legislation to change the law and practices of Scottish public authorities; Court. This route is one of last resort. The where it would not work in our system. intervenes in civil court proceedings; within 60 days at the most. ECtHR will refuse to hear a claim if there and provides guidance, information and For example, the ECtHR backtracked There are a number of technical terms used education. Its current work includes is an effective domestic remedy which the A remedial order may also be used from finding that the UK rules on hearsay in relation to the work of the Strasbourg where there has been no declaration of monitoring the implementation of Scotland’s applicant has ignored, such as an appeal National Action Plan for human rights.119 evidence in criminal trials were in breach Court. The two most significant are: incompatibility by a UK court, but there to a higher court. If a case is ‘manifestly of Convention rights after the UK Supreme has been a decision of the ECtHR finding The SHRC is recognised at the international illfounded’ the court can also refuse to • The ‘living instrument’ level as an Independent National Human Court forcefully disagreed in a carefully hear it. 122 the UK in breach of the Convention (see Rights Organisation and has ‘A’ status reasoned judgment. The ECtHR treats the Convention as a below). Again, these are very rare. under the ‘Paris Principles’ (the UN guide for ‘living instrument’. This means it is Where a country breaches the Convention, These differences of opinion create a grading these bodies). interpreted with reference to present the Court may require it to: ‘dialogue’ between the courts. Separate bodies exists to protect equality day conditions, and in the light of and human rights in Northern Ireland, the • pay compensation to affected individuals, changing moral standards or scientific Equality Commission for Northern Ireland • stop doing whatever is causing the developments. For example, over the and the Northern Ireland Human Rights problem, and/or past 50 years, the protection offered Commission. to the rights of gay and transgender • adopt ‘general measures’ to prevent the people has changed significantly.124

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The right of people with disabilities Convention should be amended to reflect The Equality Act 2010 • sexual orientation. not to be discriminated against has also this principle in its preamble.127 Protecting Convention rights Protecting Convention rights The Equality Act creates a wide-ranging been recognised by the ECtHR, despite in Parliament in Parliament Although the common law enshrines the the fact that it is not mentioned in the right of us all to the equal protection of the framework for the protection of equality. Prisoner voting It contains five key prohibitions: original text of the Convention.125 Protecting Convention rights DNA and privacy law, Article 14 of the Convention and the In Hirst v UK129, the Strasbourg Court HRA protect only against discrimination • Direct discrimination: When a • The ‘margin of appreciation’ in Parliament Until 2008, the UK National DNA held that the UK’s blanket ban on in the enjoyment of other Convention Database retained the fingerprints person is treated less favourably than prisoners voting in general elections was 132 States have a ‘margin of appreciation’ in and DNA of people never convicted of rights. another in a similar situation because Pre-Charge Detention in inconsistent with the obligation to hold the application of some rights. any offence, including children. In S they have, or are wrongly believed to Terrorism Cases free elections (Article 3, Protocol 1, which These guarantees are supplemented by and Marper, the ECtHR held that this includes a right to vote). The Strasbourg have, a protected characteristic; This means that, in some cases which After 9/11, Parliament was persuaded to blanket policy of indefinite retention was the Equality Act 2010, which provides Court held that conditions curtailing the involve striking a balance between a introduce an extended period of pre- disproportionate and incompatible with freestanding equality protection in the UK. • Indirect discrimination: When a right to vote must maintain the integrity trial detention for terrorist suspects of the right to privacy. The ECtHR rejected legitimate public interest and the impact and effectiveness of the right, and must rule generally applies to everyone, but up to fourteen days (in ordinary criminal the UK government’s argument that The Equality Act replaced a patchwork of on an individual right (discussed earlier in be imposed in pursuit of a legitimate aim affects a particular group unfairly. If there cases, police have up to seven days to this retention was necessary to prevent anti-discrimination laws, and is for the first in a way that is proportionate. The blanket aren’t fair reasons – known as objective this Chapter), the ECtHR may allow the act before a person must be charged crime or disorder or to protect the rights ban on prisoner voting did not fulfil these time a holistic legal framework for equal justification – for the treatment, this will government room – or a “margin” – to take or released). In 2006, the Government of others as the blanket retention of 133 requirements. This decision has since treatment in the law. The Act applies in sought to increase pre-charge detention information did not strike “a fair balance be unlawful; a decision which is best suited to local law, been upheld by the Supreme Court.130 It to 90 days – with suspects held for almost between the competing public and private England, Scotland and Wales. It has limited policy and practice. has also been confirmed by the ECtHR, • Failure to make reasonable three months without charge. Parliament interests”.128 effect in Northern Ireland, which has its refused, but extended the period to 28 although that Court has refused to offer adjustments to practices or premises This is because the primary responsibility 131 own equality legislation. days. In 2009, the government proposed prisoners any compensation. to avoid disadvantaging disabled people; for protecting individual rights lies with measures to retain the DNA of innocent The UK does not have to give all prisoners States. The role of the Strasbourg Court is a This measure was controversial people after arrest for up to six years Introduction • Harassment: Unwanted conduct related the vote following this ruling. It can still ‘supervisory’ one. There may be a range of and criticised by the UK Parliament (with provision for further extension). to a protected characteristic that has the stop prisoners voting without breaching the The Equality Act protects individuals against Joint Committee on Human Rights, Following criticism, including from MPs, acceptable ways of responding to a problem, Convention. However, it cannot continue a discrimination on the basis of ‘protected purpose or effect of violating a person’s which expressed concern about the the Protection of Freedoms Act 2012 each of which might adopt a different ‘blanket ban’ if the UK wants to comply with dignity or creating an intimidating, compatibility of the measure with a provides for DNA samples to be deleted characteristics’. These are: its international law commitments. hostile, degrading, humiliating or strategy, while all meeting the requirements number of rights, most importantly, after six months and for most DNA Article 5(3), which guarantees the • disability; offensive environment; and of the Convention. profiles and fingerprints to be destroyed In December 2013, a Select Committee right to be informed “promptly” of any after three years (subject to extension in of both Houses of the UK Parliament • gender reassignment; • Victimisation: When a person The ECtHR recognises that national charge. The Protection of Freedoms some cases). This process involved close recommended that all prisoners serving Act 2012 saw Parliament reduce this takes legal action against discrimination institutions are better placed to make local consideration of the balance to be struck sentences of less than 12 months should • pregnancy and maternity; period again to fourteen days. Each or harassment and is subsequently decisions than an international court. A between the right to privacy and the role be entitled to vote. However, the ban of these debates saw MPs engage in • race (including ethnic or national origins, played by DNA retention in the prevention remains in force. The UK will remain in victimised because of doing so. wider margin of appreciation is allowed detailed consideration of the unfairness colour and nationality); and detection of crime. breach of the Convention until Parliament in cases raising issues of social and moral of detention without charge and its The Act also protects someone from acts to change the law. controversy where there is a lack of consistency with Convention rights. • religion or belief; discrimination which happens because they consensus among the Member States, such • age; are believed to be in a particular group or as assisted dying.126 The countries of the because they are associated with someone • marriage and civil partnership; Council of Europe have decided that the with protected characteristics. This latter • sex; and protection is important for carers.134

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If the reason they are treated differently Changes need to be made if a disabled Come one, come all A solicitor usually only sees clients in Equal pay for equal work The public sector is connected to their relationship with a person will be at a ‘substantial his office. He has a client who suffers person with disabilities, it may be unlawful. ’ if they are not made. This equality duty Anyone providing the public with goods, disadvantage from agoraphobia and arranges to 251 women working for a local council services or facilities must do so without means facing a barrier which is not ‘minor’ meet her at home, recognising the recently won their Supreme Court claim The Equality Act also contains a public When does the Equality Act discriminating on the basis of any or ‘trivial’. However, a change need only need for a reasonable adjustment to for equal pay. Working as classroom sector equality duty. This requires public 2010 apply? protected characteristic. be made if it would be ‘reasonable’ taking his usual practice. assistants, support for learning bodies, in the performance of If a pub refuses entry to a group because into account a range of circumstances, assistants or nursery nurses, they were their functions, to give ‘due regard’ The Equality Act 2010 applies to both paid less than a group of mostly male they are Irish Travellers, then they have including the nature of the change and its In addition to the duty to make reasonable to three statutory equality needs:144 private and public bodies, including discriminated against them because of groundskeepers and refuse workers who impact on the person with a disability. adjustments, it is unlawful to discriminate their race.136 were entitled to substantial bonuses. The • The need to eliminate discrimination, employers and service providers whether against someone for a reason “arising as a Supreme Court rejected the Council’s harassment and victimisation; public or private. For example, it applies A B&B owner who refuses to let a room to consequence” of their disability, without a case that because they worked in different A college disability officer who is blind asks to small and large businesses, schools, a gay couple discriminates on grounds of 140 places there could be no claim. • The need to advance equality of 137 for reasonable adjustments to be made proportionate justification. One example hospitals, transport providers, banks, their sexual orientation. to allow him to continue to do his job. The where this may apply is where someone The decision benefited thousands of opportunity; and hotels, landlords and shops. A bank could only be accessed by college invests in software to help him do takes prolonged time away from work for women working across different local steps, with no working lift or ramp and • The need to foster good relations his job, but five years later it still doesn’t reasons connected with their disability. authorities. The Court emphasised with an ATM that couldn’t be reached work. He can bring a successful claim the purpose of the law, in addressing between different people when Equality law in action 139 by wheelchair users. It is in violation of under the Equality Act 2010. Equal pay historical undervaluing of work carrying out their activities. the equality duty to make reasonable traditionally done by women.142 A school excluded a Sikh boy – who was adjustments to make its branch The duty requires public bodies to consider required to wear a turban as part of his 138 The Equality Act 2010 continues to protect accessible to people with disabilities. Changes can include providing someone The Inner House of the Court of Session each of these needs in a rigorous and open- religious observance – for non-observance the presumption in law that men and applied the general principles set out of its uniform policy. The policy banned with aids to help them do their job properly, minded way, whenever decisions which may women should earn equal pay for equal by the Supreme Court in case against all headgear and made no exception for changing the entrance to a shop to ensure affect equality are being taken. The aim is work. It enables women to challenge Glasgow City Council.143 It gave a religious dress. By applying the rule without Disability and reasonable to make sure that the impact on potentially that someone can get in or approaching 141 broad interpretation to the meaning of exception, the school was unlawfully unequal pay and terms. how you do business differently. Service “associated employer” in section 1(6) disadvantaged groups is considered at the discriminating against him.135 adjustments providers should anticipate and make (c) of the . The Court policy-making stage. In recognition of the social barriers faced adjustments if their service might affect found that Glasgow City Council was an by people with disabilities, the Equality associated employer of two LLPs, City Most public bodies are also required It applies to employment and recruitment, to disabled people as a class. services, to education and to housing, and to Act 2010 can require ‘reasonable Parking (Glasgow) and Cordia (Services), to comply with ‘specific’ duties to adjustments’ to be made in order to to which the Council had transferred publish information showing their the decisions of public bodies (see below). its staff for services it would no longer ensure that people with disabilities receive provide. This meant that female compliance with the equality duty and the same opportunities, as far as this is claimants working for the LLPs would be setting equality objectives. possible, as someone who is not disabled. allowed to compare their pay with male employees working for the Council.

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Chapter 6: EU and international law

In earlier Chapters, we have explored intention to legislate to repeal the European What is a public body? • some new protections against disability- Free movement and related discrimination don’t apply in Equality in Parliament how the UK legal system works and how Communities Act 1972, and replace it with The public sector equality duty and the Northern Ireland; and individual rights are protected by law and an Act which will incorporate rights and EU citizenship specific public sector equality duties apply • The current Scottish Parliament statute. In this section, we look in more protections into domestic law. Fundamental • protection against discrimination continues to have a gender and ethnic to a range of public bodies specified by depth at how UK law is affected by the issues, such as free movement of workers, The free movement of goods, services in private clubs is more limited in imbalance, with only 45 women MSPs and people has been the central pillar of Parliament. This includes Ministers and law of the European Union and wider remain uncertain. Northern Ireland. (out of 129 (35%)), and two (1%) MSPs the EU since its inception. government departments, local authorities from ethnic minority backgrounds, international law. The analysis which follows sets out the and most public agencies. The Equality Commission for Northern compared to around 5% of the Scottish In 1992, the member states recognised 147 current position, but clearly events will Ireland has recommended wholesale reform population. The European Union the concept of EU citizenship, which is enjoyed by all citizens of the member Scotland 146 • Parliamentary Committees often have a significant and ongoing effect on the of equality law in Northern Ireland. In 1957, representatives from six states states of the Union. A citizen of any EU examine how government departments relevance of this information. The Equality Act 2010 applies to Scotland member state enjoys the right to move to, and public bodies meet their duties signed the Treaty of Rome, creating the live and work in, any EU member state. and the power to legislate for equality is towards people with protected European Economic Community. In Understanding EU law A Danish architect is free to join a firm characteristics. For example, the Equal broadly reserved to Westminster. The the aftermath of the Second World War, in Belgium, an Irish student to study at a Opportunities Committee January The European Economic Community Scotland Act 2016 proposes new powers the Community was intended to secure French university, and a British pensioner 2016 report Removing Barriers made started life as an economic union, to give the Scottish Parliament a greater peaceful co-operation and security as well to retire to Spain or Portugal. recommendations to the Scottish characterised by the operation of a single ability to supplement the protections as economic unity amongst European states. Government on how to tackle the under internal market for the free movement of In addition to free movement, EU citizens in that Act, including in respect of representation of ethnic minorities in the The UK joined in 1973. also enjoy a range of other rights, 148 persons, goods, money and services, with socio-economic inequality. public sector. including the right to vote for and stand as The European Union (‘EU’), today the removal of barriers to trade between • The Cross Party Disability Group was a candidate in the European Parliament Northern Ireland convened to, amongst other things, draws together 28 states from across the member states. elections, and the right to receive increase awareness and raise the continent. It promotes a common, pan- diplomatic and consular protection in any Although the Equality Act 2010 doesn’t profile of rights for disabled people in European approach to many political Today EU law covers a broad range of EU country. apply in Northern Ireland (with a few 149 the Scottish Parliament. and economic issues. Following the EU areas. For example, the EU now has limited exceptions), many of the same Referendum vote in June 2016, the UK ‘competence’ – the authority delegated to There are a number of EU institutions protected characteristics are protected will now leave the EU, on current estimates it by the member states – to develop policy which are responsible for developing and from discrimination by a patchwork of by around April 2019. An understanding and law in relation to agriculture, fishing, overseeing EU law. These include: earlier legislation.145 Many features are of the scope and influence of EU law for business, energy, health, justice, human similar. For example, Section 75 and • The European Commission: Draws people living in the UK remains relevant rights, the environment and transport. Schedule 9 of the Northern Ireland Act up proposals for law and policy on behalf for shaping our new relationship with the 1998 provide for a single public sector of the Union. Once adopted, it works EU. A crucial part of the “Brexit” process equality duty. There are, however, a number to ensure the correct implementation of will be to consider how the protection of important differences. These include: decisions of the Council and Parliament. of rights, introduced through EU law • the prohibition on age discrimination only over the period of the UK’s membership. • The Council of the European applies to employment issues; The UK Government has indicated an Union: This comprises Ministers from each of the member states and works

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to determine law and policy within of the EU and the principles to be if each member state were able to pick EU law in the UK It also states that fundamental rights as The Charter of Fundamental Europe. It reviews and amends the followed by the Member States in and choose which EU laws to apply. So, protected by the European Convention Rights of the European Union legislative proposals of the Commission achieving those objectives. members of the EU agree that EU law will The European Communities Act on Human Rights are part of EU law.154 as well as determining the law and policy 1972 (‘ECA’) provides for EU law to have The Charter of Fundamental Rights Secondary EU legislation is used to obtain have ‘supremacy’. This means that, in agenda within Europe. Law is agreed by direct effect in domestic law. It also allows The Court of Justice of of the European Union (‘the Charter’) these objectives in practice. There are practice, EU law will trump inconsistent qualified majority vote. Together with the Ministers to use secondary legislation to the European Union was agreed by the member states of the EU different types of secondary legislation, national law. They are ‘directly effective’, European Parliament, these bodies are which means that they confer rights on implement changes to EU law which may and came into force in 2009. the key decision-makers for the Union. the most important of which are be needed as a result of EU directives. ‘regulations’ and ‘directives’. individuals which can be enforced against Only the CJEU can declare EU legislation It is binding on EU institutions and member unlawful. If a question is • The European Parliament: This other individuals, and against the state. In practice ‘direct effect’ means that any states when they are acting to give effect to • EU regulations automatically bind the raised about the legality of an EU comprises Members of the European legislation – including primary legislation EU law. The rights in the Charter include UK when they come into force, without measure, a domestic judge can refer Parliament elected in constituencies Driving discrimination law – which is incompatible with EU law is the matter to the CJEU for an answer. the need for new UK legislation. In key political rights – such as the right to across Europe once every five years; ‘disapplied’. This means the law will stay liberty and security – and also some social practice, these rules automatically The Court has repeatedly held UK courts also have the power (and in it reviews and amends legislative on the statute books, but will stop having and economic rights, such as the right to proposals from the Commission and trump inconsistent domestic law. that the right not to be discriminated certain circumstances, an obligation) to against on grounds of sex is one of any effect in so far as it is inconsistent with send cases to the CJEU to ask them to equal pay for men and women. Council and calls for political and • EU directives set out binding goals the fundamental human rights whose the European provisions. clarify the interpretation of EU law. These legislative action. It shares decision- that member states must achieve, but observance the Court has a duty to ‘preliminary references’ take place The purpose of the Charter is to making responsibility with the Council they leave the decision as to how best ensure.” Individuals can directly enforce positive during the course of a case before the codify, rather than extend, the rights (on a ‘co-decision’ basis). to achieve that result to each member rights created by directives against the national court. The CJEU will answer of EU citizens, and it is binding on Court of Justice 152 the questions about the specific point of 151 state, but not against other individuals. EU institutions developing EU law. • The Court of Justice of the state. They give countries time to decide of the European Union, Schröder law referred, but will generally leave the how to change the law. If they are not However, the European Communities Act European Union (‘CJEU’): final decision on the case to the domestic The Charter provides an important addition implemented within that period, or are One example of the impact of EU law is 1972 requires courts to interpret national Comprises judges from each member courts. to the protection offered by the ECHR and badly or only partially implemented, in driving change in anti-discrimination law in a way that respects any EU law that state. It interprets EU law to make sure law across Europe. The right to equal the HRA: individuals can still rely on their applies. This means that in areas with an Unlike the European Court of Human it is applied in the same way in all EU pay between men and women has been Rights, individuals can’t generally take countries, and settles legal disputes provisions against the state. In cases recognised by the EU ever since its EU law connection, EU law can play an complaints about EU law to the Court • It protects social and economic rights between national governments and between individuals, the courts will inception, and was an influential factor important role in domestic disputes. of Justice. There is an exception for which are not in the ECHR or the HRA. 150 interpret domestic law in line with the in the introduction of the Equal Pay Act EU institutions. individuals who have been affected • Where Convention rights protected directive as far as it is possible to do so. 1970 on the eve of the UK’s . EU law and directly by the activities of the European There are different types of EU law, institutions, for example persons or by the ECHR are also covered by the • Judgments of the Court of Justice More recently, a series of EU laws fundamental rights companies subject to EU sanctions. Charter, it can provide greater protection which take effect in different ways: on non-discrimination was directly of the European Union: The case law Respect for the fundamental rights of EU than the Human Rights Act. • Treaties: The primary law of the EU is of the Court is binding on member states. responsible for the introduction of many of the equality rights we now enjoy in the citizens is one of the general principles of If an Act of Parliament clearly violates contained in two treaties – the Treaty on It will be applied by domestic judges UK. Decisions of the Court of Justice of EU law. It is drawn from the constitutional the Functioning of the European Union when they are thinking about questions both the Charter and the Convention, the the European Union continue to inform traditions common to member states, (‘TFEU’) and the Treaty on European involving EU law. the development of our law under the European Communities Act 1972 will Union (‘TEU’). Together these treaties Equality Act 2010. and upheld by the Court. The Treaty on the require the offending Act to be disapplied. are sometimes called ‘the Lisbon The goal of setting common standards in European Union explicitly recognises a role The only remedy available under the HRA treaty’. They set out the objectives key policy areas would be undermined for the EU in upholding human rights.153 would be a declaration of incompatibility.

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consideration of the work of the EU and The Scottish Parliament has this UK do not automatically create rights • The Scottish Parliament enacted The Charter in action In considering what constitutes the its impact on domestic law and policy. responsibility in relation to devolved and obligations which individuals can the International Criminal Court ‘interests of children’ for the purpose of Two employees at a foreign embassy areas, such as fisheries, agriculture, the enforce in the domestic courts. (Scotland) Act 2001 which expressly the , the Children and In some areas the UK has to decide wanted to sue their employers in the environment, and justice. Section 29 of the seeks to give effect to the obligations Young People’s Commissioner Scotland whether to ‘opt-in’ to a new EU law. Employment Tribunal, alleging unfair Scotland Act 1998 obliges any Act of the Treaties under the Rome Statute 1998. must have regard to the UN Convention treatment, race discrimination and breaches The Committees closely scrutinise these on the Rights of the Child, as must Scottish Parliament to be compatible with of the rules on working time. Their case decisions, and the wider role of the UK Treaty-making is the responsibility of the the court if called upon to interpret this EU law. Unincorporated treaties provision.161 was barred by the application of the State Government in the adoption of new EU law. Crown, exercised typically by the Foreign Immunity Act 1972 and they complained The role of both Parliaments in ensuring Secretary. Parliament plays an important A treaty can be ratified (and therefore that this was incompatible with the right to a The Culture, Tourism, Europe and External role in ‘ratification’, the process which internationally binding) but not formally fair hearing under both Article 6 HRA, and compliance with EU law is particularly The way in which judges interpret the Relations Committee of the Scottish determines whether a treaty will bind incorporated into domestic law. The Article 47 of the Charter. The language of important in relation to the implementation law – both statutory law and common the State Immunity Act 1972 was plain. The Parliament has, amongst its responsibilities, the UK internationally. No international ‘unincorporated’ treaty obligations remain of EU directives. Directives will require law – can be informed and influenced by only remedy open under the HRA was a the obligation to scrutinise proposals treaty will bind the UK unless it has been binding on the UK in international law, and declaration of incompatibility. However, in domestic law to make them work. the interpretation of treaties.162 Where an for European Union legislation; the laid before the UK Parliament and neither will also remain relevant to the UK and so far as the claim related to EU law – race Directives which aren’t implemented well international law obligation is relevant to an implementation of European Communities House objects.157 The UK Parliament Scottish Parliaments’ consideration of law, discrimination and working time – the State – or on time – may be given direct effect by issue before a Scottish court, the judges may Immunity Act 1972 was set aside and their and European Union legislation; any always has the opportunity to debate the policy and practice. The rule of law assumes the courts. look at that obligation to help them reach an claim could proceed. The rest of their case European Communities or European implications of a treaty and could vote that the UK intends to comply with its 155 interpretation which meets our international was struck out. Union issue; and the development against the UK being bound by the treaty. obligations in international law.158 International law obligations in practice. For example, in and implementation of the Scottish Within their devolved competences, This section expands on the relationship deciding a disability discrimination case Administration’s links with countries and Scotland and Northern Ireland also have The Ministerial Code imposes an between UK and international law and under the Human Rights Act 1998, the territories outside Scotland, the European particular responsibilities for the UK’s overarching duty on Ministers to comply EU legislation highlights some of the UK’s most important Supreme Court considered the UK’s Union (and its institutions) and other international obligations. with the law, which is interpreted as and Parliament international organisations. international obligations for individuals. including international law and treaty obligations under the UN Convention on 163 It also identifies key ways in which Once ratified, Parliament may decide 159 the Rights of Persons with Disabilities. MPs and MSPs receive copies of EU obligations. This duty is expressly set out Ensuring UK legislation reflects EU law international law might impact on the to ‘incorporate’ the UK’s international 160 documents and explanatory notes to keep in the Scottish Ministerial Code. This also Some treaties also provide specific work of Parliament. obligations into domestic law. Ratification them up-to-date with developments that The UK Parliament is responsible for means that international law will be relevant international mechanisms for their binds the UK in international law, but may affect the UK and their constituents. considering changes to UK legislation to the interpretation of domestic legislation interpretation and enforcement. How does international law further steps are very likely to be needed designed to implement EU law. This is often and to the development of the common law. The Court of Justice of the European MPs on the House of Commons European before the obligations take effect in done through secondary legislation under affect our law? Union is one example. Although a treaty Scrutiny Committee and Peers on the House domestic law. For example: the European Communities Act 1972. generally has no formal binding effect in of Lords European Scrutiny Committee (and In the UK, international law is treated However, major changes are regularly • The UN Convention against Torture 1984 domestic law (absent ‘incorporation’), its various Sub-Committees) have particular as separate and distinct from domestic made by primary legislation. For example, requires states to make acts of torture Ministers, officials and Parliament will responsibility for scrutinising EU laws that law. This ‘dualist’ approach means that the was intended a criminal offence. The UK ratified the be aware that the UK’s adherence to the the government puts to Parliament.156 international law is not automatically to implement the Data Protection Convention in 1988. The Criminal Justice treaty obligations is being monitored The reports of these Committees are part of domestic law. This means Directive, adopted in 1995. Act 1988 then created a framework for internationally by other treaty parties. designed to help inform Parliament in its ‘treaty’ obligations and ‘customary international law’ which bind the the prosecution of acts of torture.

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Customary international law International human Other key human rights treaties ratified by the UK include: Ratifying the Convention Torture and practice Children’s rights It is generally accepted that customary rights law on the Rights of Persons at home? and the UNCRC • The Convention relating to the Status of international law is a source of the common The post-war political settlement included with Disabilities law of Scotland. Scots courts have been Refugees (‘the Refugee Convention’); The United Nations Convention The UN Convention on the Rights of the the development of international treaties against Torture and Other Cruel, Inhuman clear that “a rule of customary international The CRPD (and its Optional Protocol) Child is an international treaty ratified which protect minimum standards of • The Convention on the Elimination of or Degrading Treatment or Punishment by the UK. The UK government has law is a rule of Scots law”.164 However, there Racial Discrimination (‘CERD’); was ratified by the UK in June 2009. This (‘UNCAT’) was ratified by the UK in 1988. individual rights in international law. obliges the UK to take concrete action committed to ensuring that children have is no absolute right to bring a claim before the rights guaranteed to them under the The UN Declaration of Human Rights, • The Convention on the Elimination of all to comply with its obligations under the The UK has also signed the Optional 168 UNCRC. The UNCRC influences the the Scottish courts solely on the basis of CRPD. Protocol to UNCAT (‘OPCAT’), which agreed in 1948, has been joined by Forms of Discrimination against Women way in which Convention rights protected customary international law. establishes a system of unannounced a framework of specific guarantees (‘CEDAW’); by the HRA are applied by the domestic In 2012, the UK Parliament’s Joint and unrestricted visits by independent Whether a person can bring a case relying designed to protect the most vulnerable Committee on Human Rights published , as well as England • The UN Convention against Torture international and national monitoring 171 a report on the right of disabled people to and Wales. on a rule of customary international law communities in every society. (‘UNCAT’); bodies to places where persons are depends on: (a) the subject matter of the independent living within the context of deprived of their liberty. The UK ratified the International Covenant the CRPD. It found that the government The Convention has been referred to dispute; (b) whether the claim has any other • The Convention on the Rights of the with approval by the Scottish courts when on Civil and Political Rights (‘ICCPR’) and had not conducted an assessment The UK National Preventive Mechanism Child (‘CRC’); and interpreting the provisions of the Children basis in domestic law; (c) the importance of of the cumulative impact of budget (‘NPM’) established under the OPCAT the International Covenant on Economic, (Scotland) Act 1995.172 The Scottish the dispute; (d) the complexity of the issue, cuts and other reforms on disabled is currently made up of 20 visiting or Social and Cultural Rights (‘ICESCR’), in • The Convention on the Rights of Persons Parliament has further legislated in the people. It regretted that the CRPD had inspecting bodies who visit places of and (e) whether there is any constitutional with Disabilities (‘CRPD’). Children and Young Persons (Scotland) 1976. Every few years, the UK submits a not yet played a significant role in the detention such as prisons, police custody objection (for example, a clash between the Act 2014 for a continuing duty upon ‘periodic report’ on its performance to development of policy and legislation in and immigration detention centres. The These treaties all have their own individual Scottish Ministers and public authorities rule of custom and an important democratic the UK. NPM is coordinated by the bodies set up to monitor compliance monitoring mechanisms. The comments and to consider the steps necessary to secure principle recognised by the common HM Inspectorate of Prisons (‘HMIP’). The with those treaties in practice. These are recommendations of the UN Committees in further or better effect of the UNCRC law).165 Irrespective of whether a particular Since ratification, the Supreme Court has Joint Committee on Human Rights has the UN Human Rights Committee and the relation to the UK can inform the work of confirmed that it will consider the CRPD requirements in Scotland. customary international rule can be directly recommended a number of UN Committee on Economic, Social and public agencies, government departments in disability cases brought under the reforms to UK law in the light of our enforced in the domestic courts, it can HRA, where it can assist the court in its UNCAT obligations.170 Cultural Rights respectively. and Parliament. 169 influence the general development of the interpretation of Convention rights. common law. The UK accepts the ‘right of individual petition’ in relation to both CEDAW and Customary international law also influences CRPD. This means that people in the UK the work of Parliament. For example, who think that UK law, policy or practice is reporting on the UK’s involvement in unlawful can take their complaint directly Kosovo, the House of Commons Select to the relevant UN Committee.167 Committee on Foreign Affairs considered the development of customary international law on humanitarian intervention.166

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Chapter 7: Want to know more?

Where next for legal help? Criminal legal aid is later cited by the to appear in court cannot use the Duty The gives funding This guide is designed as a basic introduction Solicitor and has to use another solicitor. to help people who qualify to get legal to laws which most affect the work of MSPs, It may be possible for that individual to get advice, or for a solicitor to act for them in their staff at Holyrood and Scottish MPs and Advice by Way of Representation from court. The help an individual can get will their staff at Westminster. a solicitor of their choice if that solicitor depend on: However, many parliamentarians face is registered with the Scottish Legal Aid constituents with complex legal problems on • the seriousness of the charges they face Board. A means test will be applied. a weekly basis. They also deal with difficult • whether they are in custody An accused who appears on summary legal questions in their work in parliament. complaint in the Sheriff Court or Justice of • whether they plan to plead guilty or This section is designed to help provide some the Peace Court and pleads not guilty can not guilty easy signposts to where further help and then get Criminal Legal Aid for the trial and support is available. A person who is detained or arrested by any following deferred sentence, but will Can my constituent get legal aid? the police must be offered access to legal have to show they are financially eligible, advice before they are interviewed. In most and that it is “in the interests of justice” Legal Aid in Scotland is provided by cases this will involve the police calling the to grant legal aid – in short, that it would be the Scottish Legal Aid Board173. Scottish Legal Aid Board’s Solicitor unfair to them, the court, or someone else All individuals are entitled to free Contact Line who can pass a message if they did not have a solicitor. legal assistance if arrested, detained or onto a suspect’s own solicitor, provide An accused, who first appears in the Sheriff questioned at a police station, if they are legal advice over the telephone or send the Court on Petition for a more serious crime, arrested and appear from custody in the Police Station Duty Solicitor to give is automatically entitled to legal aid while Sheriff or Justice of the Peace Court and in advice at the police station. Advice over they remain in custody and can choose to certain other specific circumstances. Legal the telephone, from a Police Station Duty use either the Duty Solicitor or their own aid may be available for a wide range of Solicitor or from a suspect’s own solicitor if solicitor. Once they have been released other legal advice and representation, but they have previously instructed them is free. means tests may apply. on bail, or fully committed for trial, their A person who is then held by the police in solicitor should apply for criminal legal Whether a person is able to get legal aid custody to appear in court or is released on aid. There is no “interests of justice” test will depend on whether the issue they need an undertaking to appear on a specific later in solemn cases and the Scottish Legal Aid advice on involves , date is entitled to use the services of the Board only has to consider whether paying or involves the Children’s Hearing system. Duty Solicitor when they first appear in for legal assistance would cause too much In order to get legal aid an individual must court for free. If they wish to use their own hardship to the accused or his dependants. contact a solicitor who is registered with solicitor a means test will be applied by the A convicted person who wishes to appeal the Scottish Legal Aid Board; a ‘Solicitor Scottish Legal Aid Board.175 Finder’ can be found on their website.174 against their conviction or sentence can A suspect who is not held in custody and

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obtain legal aid. A means test will apply • Apply for civil legal aid Legal aid is available for children or an In each jurisdiction, means and merits Where next for advice? unless legal aid was in place at trial. There adult, such as a parent, involved in the tests apply to most legal aid. In England If an individual qualifies financially for is no merits test as such an appeal can only upbringing of a child who is going to or has and Wales there are wide areas of the civil Citizens Advice Scotland gives The Scottish Legal Aid Board can Civil Legal Aid or Civil Advice and proceed to a hearing with the leave of either been to a children’s hearing. This form of law; including consumer and contractual generalist free advice and information advise on eligibility for legal aid and court Assistance they may need to pay a from its local bureaux. Information and processes. the Sheriff Appeal Court or High Court of legal aid also covers court hearings that are disputes, most immigration claims, private contribution towards the cost of the case. contact details can be found online at Justiciary (depending on whether it is an connected to children’s hearings. In this family law cases, personal injury cases, ACAS gives advice on employment If they win or keep money in the case, they their website. appeal arising from a summary or solemn context a ‘child’ means someone under 16 advice on making a will and defamation matters and provides mediation for may have to pay up to the full cost of the There are a range of other independent employment disputes. case). or up to 18 if that child had been placed claims for which legal aid is not available. work done by their legal team. local advice agencies. AdviceUK provides on a compulsory supervision order by a details of agencies in Scotland, England In Northern Ireland Civil legal aid children’s hearing. A means test is generally As in Scotland in both jurisdictions a merits and Wales. Civil legal aid covers… Citizens Advice Northern Ireland. Civil legal assistance helps people to get applied and in some cases a contribution test requires that the applicant demonstrate • Divorce and other matters affecting an objective basis for their case, as well as Local help can be found through the legal advice or to put their civil case in families and children will be required from an individual with an Scottish Association of Law Centres. Advice NI for free advice on tax, benefits court. It may be free or they may have to income above a certain level.177 showing that it is reasonable to use public Many Scottish Local Authorities operate and debt problems. • Trying to get compensation for funds towards it. advice services for residents with pay something towards it and in some cases The Equality Commission Northern injuries after an accident or for How can an individual access legal aid? housing, benefits and money and debt Ireland may be able to give free advice a contribution will be required from an medical negligence issues. individual with an income above a certain Individuals who are detained or questioned More detailed information on the legal aid on matters relating to discrimination. • Housing matters such as rent or level. in a police station must be given access to schemes in England and Wales and Northern LawWorks provides details of free legal mortgage arrears, repairs and 178 In England and Wales legal advice. The way to access legal aid is to Ireland can be found online. advice services provided by law students Of course some civil disputes can be eviction at Edinburgh, Aberdeen and Strathclyde contact a legal aid solicitor, who will apply Citizens Advice in England and Wales. resolved without going to court and then • Debt and welfare rights Universities. for legal aid on their behalf. When legal aid is not available an individual can get Civil Advice and Local law centres in England and Wales • Matters relating to immigration, The Faculty of ’ Free Assistance. This helps pay for advice from Many parliamentarians will see constituents can be found through the Law Centres nationality and asylum Evidence is key Legal Services Unit provides free legal Network. a solicitor on any matter of Scots law – for who are looking for help because they are representation subject to a referral from example, to try to settle a dispute without • Adults with incapacity - guardianship Applicants should provide their legal not eligible for legal aid and cannot afford certain agencies listed on their website. LawWorks provides details for local free and intervention orders aid solicitor with as much evidence as legal advice. Although MSPs and MPs may legal advice from solicitors. going to court. As well as giving advice possible – particularly in relation to their The ‘Find a • Arranging a power of attorney not be able to provide legal advice, they about the matter, a solicitor can: financial circumstances, and the merits of Solicitor’ facility on its website can help The Bar of England and Wales Pro the case. often do provide support. They can help source an appropriate solicitor Bono Unit offers free legal representation, • Give advice on whether there is a legal individuals understand their options and subject to a referral by a Citizens Advice The case to take forward Children’s hearings often help people to better explain their Equality Advisory and Support Bureau, a law centre or an MP. England, Wales and Northern Service may be able to provide advice in • Try to negotiate with the other party complaints in correspondence. some equality cases. The Personal Support Unit provides The Scottish Children’s Reporter Ireland to settle it Administration runs the system of MSPs and their surgeries build relationships support in civil proceedings. They are Some solicitors, and through them based at a number of courts across the 176 • Give advice on whether to apply for Children’s Hearings in Scotland. The Scottish Legal Aid Board only funds with local law centres and advice services, advocates, may offer advice on ‘fixed- country. legal aid to take the matter to court Generally children are referred to a advice and representation in respect of Scots and are able to refer individuals for help on fee’ or ‘no-win, no-fee’ conditional fee Children’s Hearing because the Children’s Law. In England and Wales and Northern a local level. Some national sources of legal arrangements. The Equality Advisory and Support • Write letters or get medical or expert Ireland, independent legal aid schemes will Service may be able to provide advice in Reporter has concerns about them. advice and support are outlined, below. some equality cases. reports. determine access to legal aid.

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Legal help and support Legal help and support These Committees have access to their Professional bodies own dedicated legal advisers Equality and Human Rights at Holyrood at Westminster • Law Society of Scotland and specialist clerks. MSPs, MPs and staff with questions • Howard League Scotland There are a number of sources of legal • Law Society of England and Wales The House of Commons • Many All-Party Parliamentary about equality and human rights issues • Scottish Association for Mental support available at Holyrood. Groups exist for MPs and Peers with • Law Society of Northern Ireland may find the Scottish Human Rights Health There are also number of sources of legal Commission, the Equality and Human • REDRESS The Scottish Parliament’s Information an interest in legal issues. These include , or the support available at Westminster: • Rights Commission Northern • Reprieve Centre (SPICe) is the key resource for groups on Legal and Constitutional Ireland Human Rights Commission • The Prison Reform Trust MSPs to find information on bills passing • The House of Commons Library – Affairs, Legal Aid and the Rule of Law. • Bar Council helpful. For equality questions in Northern and their colleagues in the House of Ireland, contact the Northern Ireland • The Public Law Project through parliament and the parliamentary • Bar of Northern Ireland Lords – will be the first port of call Equality Commission. • Scottish Women’s Rights Centre process.179 Research briefings and fact Legal help and support for many MPs seeking help on legal • Rape Crisis sheets are available across all areas of the Academic bodies Liberty is a campaign organisation issues. The Library provides impartial from others • Ethnic Minorities Law Centre Parliament’s competence. In particular, on working on human rights and civil liberties and independent professional research JUSTICE has worked with MPs on legal Many academic institutions and in the UK. Liberty also runs justice matters, there are regular briefings Immigration support to MPs and their staff. issues within our expertise since our individual academics are happy to assist an advice line on these issues, on the operation of the justice system and, Parliamentarians on issues within their field which is open to the public. They produce briefings on most creation in 1957. JUSTICE Scotland was MSPs, MPs and their caseworkers on parliament and government, broader of interest. Those which work on legal and may regularly handle questions about launched in 2012 and aims to provide Both Amnesty International and the constitutional and electoral matters are topical areas of interest and on all Bills immigration law. The following similar assistance to MSPs. In areas constitutional issues include: British Institute of Human Rights work progressing through Parliament. contacts may be helpful: considered. on human rights issues in the UK. where we work, we regularly receive and • The Centre on Constitutional Change at • The Office of Speaker’s Counsel • Scottish Refugee Council Certain Parliamentary Committees answer questions from parliamentarians. the University of Edinburgh Many other organisations work actively (‘OSC’) provides legal advice and will have considered a matter in more detail Information about our work, and details on on specific human rights issues in the • The Immigration Lawyers and can direct to relevant expertise. These support to Mr Speaker, the Clerk how to contact our staff, is available at the • The University College London UK, focusing on, for example, health, Practitioners Association include: and all the departments of the House JUSTICE website. Constitution Unit children or disability. Many will have • The Joint Council for the as an institution. specialist legal expertise which MPs Welfare of Immigrants • The Bingham Centre for the Rule of Law and staff may find useful. Note that this - The Justice Committee and its sub- A significant number of organisations Housing The Office does not advise list is not exhaustive: committee on Policing outside both Parliaments may be willing • LSE Institute of Public Affairs Members and their staff, but is MSPs, MPs and their caseworkers may to help MSPs, MPs and their staff on legal (Constitution Project) • Age UK - the Delegated Powers and always happy to assist Members to find regularly handle questions about housing issues within their area of expertise. These • Together (Scottish Alliance For an alternative source of advice or to law. The following contacts may be - Law Reform Committee. The latter’s include professional bodies, universities and Other sources of help Children’s Rights) helpful: indicate where an answer may be found. • The Equality and Diversity Forum clerks are often a very helpful source of academics, expert practitioners and civil Specialist organisations with legal expertise • Inclusion Scotland information for MSPs. • Specialist Select Committees: society organisations. • The Housing Law Practitioners work in many of the areas where MPs will • Fair Trials Association The Non-Governmental Bills Unit There are a number of Select Committees receive most calls for help. in both Houses which may already have • Scottish Child Law Centre • Shelter Scotland can provide advice for any MSPs who produced a report on a matter of legal are considering lodging a proposal for a interest. Members’ Bill.

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References

1 This was first proclaimed in the Declaration 12 Developments were not always equivalent. the Employment and Employment Appeals – this summary of the principle of open justice 53 Lord Advocate’s Reference 1 of 2001, 2002 65 R v North and East Devon Health Authority of Arbroath 1320, which asserted that Robert For instance, torture was made illegal in Tribunal, and the Competition Appeal Tribunal, is uncontroversial. SLT 466. Such judicial activism is sometimes (ex parte Coughlan) [2001] QB 213. the Bruce ruled Scotland with the consent of England some time before Scotland, leading make up separate jurisdictions which exist controversial on the basis that it is really a 40 See Justice and Security Act 2013. 66 Pham v Secretary of State for the Home the people and subject to him maintaining the to instances where those accused of crime outside the two-tier structure. matter for the Scottish Parliament to amend Department [2015] UKSC 19. integrity and independence of Scotland as a were subject to ‘extraordinary rendition’ from Scots Criminal Law. Common law sexual 23 Locke, Second Treatise of Government (1689), 41 See also, Bank Mellat v HM Treasury [2013] nation. England to be tortured in Scotland. offences have now been superseded by the chap. XVII, s.202, p.400. UKSC 38 at [3] and [74]. 67 1988, s 27B(2)(a). Sexual Offences (Scotland) Act 2009. 2 C. Russell, James VI and I and his English 13 A and others v Secretary of State for the Home 24 AXA General Insurance Company Ltd v Lord 42 Black-Clawson International Ltd v Papierwerke 68 R v Secretary of State for Trade and Industry Parliaments (OUP, 2011), Ch. VII, “The Union”, Department [2004] UKHL 56 at [42] 54 The opposite occurs too but less frequently, as Advocate [2011] UKSC 46, at [51], citing Waldhof-Aschaffenburg AG [1975] AC 591, ex p Greenpeace Ltd [2000] 2 CMLR 94. pps. 126-7. at p.638. the size of the jurisdictions mean it is relatively 14 s12-14 of the Judiciary and Courts (Scotland) himself in R (Jackson and others) v Attorney 69 R v Somerset County Council and ARC unusual for cases in Scotland to consider 3 David Howarth, David Feldman (Ed), Law in Act 2008. General [2005] UKHL 56 43 Kennedy v The Charity Commission [2014] Southern Ltd, ex p Dixon [1998] Env LR 111 points before similar points have been taken Politics, Politics in Law (2014), Chapter.3. UKSC 20 at [133]. 15 s1 of the Judiciary and Courts (Scotland) Act 25 Entick v Carrington [1765] EWHC KB J98. in England. An exception has been in the 70 Christian Institute and others v Scottish 4 See s63A Scotland Act 2016. 2008. human rights area where the enforceability 26 See s1 Constitutional Reform Act 2005 and 44 Christian Institute and others v Lord Advocate Ministers 2016 SC 47, at paragraphs 41-43. of human rights in the Scotland Act 1998 5 The Northern Ireland Act 1998 (which was 16 Regina v Bow Street Metropolitan Stipendiary s1(a)(i) of the Legal Services (Scotland) Act [2016] UKSC 51 (The case was appealed to the UK Supreme meant many of the leading early human rights Court, but not on this issue. See chapter 2) founded on the terms of the Good Friday Magistrat, ex parte Pinochet Ugarte (No 2) 2010. Section 15 of the proposed 2014 Scottish 45 In an exception to this rule, Parliament can cases considered by the Supreme Court were Agreement) and the Government of Wales Act [1999] 2 WLR 272. Interestingly, this was a Independence Bill stated “[t]he principle of the authorise Ministers to amend primary legislation 71 Court of Session Act 1988, s 27A. Scottish cases. 1998. Both have been subsequently amended. case where one of the Scottish judges applied rule of law continues to apply in Scotland”. in a later statutory instrument (‘secondary 72 Court of Session Act 1988, s27B. the principles already established in Scots law 55 The controversial dispute resolution 6 The Scottish Parliament is also prevented from 27 The Scottish Ministerial Code at [1.2], legislation’). This practice is commonly known into . mechanisms of the proposed Transatlantic legislating so as to create law that would be law available online at http://www.gov.scot/ as a ‘Henry VIII Clause’ and is generally subject 73 R v Inland Revenue Commissioners ex p Trade and Investment Partnership between the of a country other than Scotland or to remove 17 These documents are available online from the Publications/2016/08/1393. to close scrutiny by Parliament. Locke, Second National Federation of Self-Employed and EU and the US are one example the Lord Advocate from his role as independent respective government websites. Treatise of Government (1689), chap. XVII, Small Business Ltd [1982] AC 617 at p.643 28 The Civil Service Code (Scottish Executive s.202, p.400. (Lord Diplock). prosecutor and investigator of deaths in 56 R v Somerset County Council and ARC 18 The Court Reform (Scotland) Act 2014 has version) at Paragraph 6, available Scotland. Southern Ltd, ex p Dixon [1998] Env LR 111 introduced a new Sheriff Appeal Court which online at http://www.gov.scot/Resource/ 46 For a description of the equivalent process in the 74 Court of Session Rules, rule 58.8. UK Parliament, see the JUSTICE publication for 7 These were previously called ‘Sewel Motions’ started to hear appeals in September 2015. Doc/923/0110016.pdf. 57 McColl v Strathclyde Regional Council 1983 75 C. Himsworth, Judicial Review in Scotland, MPs and Peers, Law for Lawmakers. and may still be referred to by this name. See SLT 179 19 McInnes v HM Advocate [2010] UKSC 7 at [5] 29 Bingham, The Rule of Law (2010), p.9. in Supperstone, Goudie, Walker and Fenwick s28(8) Scotland Act 1998 as amended. 47 For instance, the Damages (Asbestos-related (eds.), Judicial Review, 5th Edn (2014), (Lord Hope). 58 R v Secretary of State for the Home 30 Bingham, The Rule of Law (2010). Conditions) Scotland Act 2009 was introduced para.22.9.1. See also, for example, in Re Board 8 AV Dicey, Introduction to the Study of the Law Department Ex p. Simms [2000] 2 AC 115. 20 Criminal Procedure (Scotland) Act 1995, specifically to reverse the decision of the courts of the Constitution (1885), p.494. 31 R (Secretary of State for The Home of Governors of Loreto Grammar School’s section 124(2), as amended. Once the that pleural plaques, being in themselves 59 Associated Provincial Picture Houses Ltd v Department) ex parte Khawaja [1983] 2 WLR Application for Judicial Review [2011] NIQB 30. 9 In the 1953 case of McCormick v Lord compatibility issue is resolved, the Supreme harmless, could not form the basis for a Wednesbury Corporation [1948] 1 KB 223 321, p.111. 76 Anthony, Himsworth, Lewis J and Lloyd Jones Advocate, 1953 SC 396; 1953 SLT 255; [1953] Court must remit the case back to the High compensation claim. The subsequent legal 60 Council of Civil Service Unions and Others v LJ, Devolution, in Supperstone, Goudie, Walker ScotCS CSIH_2, the then Lord President stated Court for disposal, meaning that the High Court 32 A v Secretary of State for the Home challenge to the legislation (Axa, Petitioner) was Minister for the Civil Service Respondent [1985] and Fenwick (eds.), Judicial Review, 5th Edn that the principle was not part of Scotland’s of Justiciary remains the final court of appeal Department (‘Belmarsh’) [2004] UKHL 56 at rejected by the House of Lord’s successor, the A.C. 374 (Lord Diplock). (2014), para.22.5.1. constitutional history, and doubted it could be for all criminal matters in Scotland. [237]. UK Supreme Court (see Chapter 1). said to be true for a UK Parliament founded 61 R (Greenpeace Ltd) v Secretary of State for 77 Robinson v Secretary of State for Northern 21 The new Sheriff Appeal Court introduced by the 33 Railway Express Agency Inc v New York (1949) 48 Adler v George [1964] 2 QB 7. by a treaty between nations. In more recent Trade and Industry (No 2) [2007] EWHC 311 Court Reform (Scotland) Act 2014 started to 336 U.S. 106 at [112]. Ireland [2002] UKHL 32. judgments, the Supreme Court has hinted 49 Pepper v Hart [1993] AC 593. (Admin). In another example, the court found hear civil appeals in January 2016. The Act has 78 Re McComb’s Application for Judicial Review that the common law may limit parliamentary 34 See Bingham, The Rule of Law (2010), p.55. that the public consultation process regarding also introduced a new Personal Injury Court, 50 Wilson v First County Trust (No.2) [2003] UKHL [2003] NIQB 47. sovereignty, for example the non-binding the proposed third runway at Heathrow was which commenced operating in September 35 Short v Poole Corporation [1926], Ch.66, at p. 40 at [66]. opinion of Lord Hope in Jackson v the Attorney invalid as it was based on out-of-date figures, 2015. 90, 91, (Warrington LJ) 79 For a summary of judicial review in Northern General [2005] UKHL 56, which was a case 51 Thoburn v Sunderland City Council [2002] see R (Hillingdon and others) v Secretary of Ireland see Dickson, Law in Northern Ireland about the . 22 The UK tribunal system is largely arranged on a 36 R v Secretary of State for the Home EWHC 195 Admin at [62]. State for Transport [2010] EWHC 626 (Admin). (2013) at pp.130-134. two-tier basis. The First-tier Tribunal comprises Department ex p. Leech [1993] 3 WLR 1125, at 10 See, for instance, the decision of the Supreme 52 Donoghue v Stevenson [1932] AC 562. The 62 AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC lots of different chambers dealing with disputes p.210. 80 There is no strict legal obligation on the Court in Axa General Insurance Limited v HM 629 at p.638. in the first instance. Appeals from the First-tier ‘Paisley Snail’ has become known as the origin Scottish Government or Parliament to Advocate, [2011] UKSC 46; [2012] 1 A.C. 868; 37 Magna Carta (1215), Article 40. of the law of negligence, not just in Scotland implement the UK’s international obligations: go to the appropriate chamber in the Upper 63 Southey, Weston and Bunting, Judicial Review: 2012 S.C. (U.K.S.C.) 122; 2011 S.L.T. 1061. and England but in common law jurisdictions Whaley v HM Advocate [2007] UKHL 53, at [8] Tribunal. From there, you can appeal to the 38 HC Deb, 15 Dec 1948, Vol 549, Col. 1221. A Practical Guide (2012), p.51 citing R v Gough across the world – although it may never have and [9], Lord Hope. 11 As noted by Lord Hughes (dissenting in part) in Courts of Appeal (England and Wales and [1993] AC 646 at p.661G. 39 Bank Mellat v HM Treasury [2013] UKSC 38 existed. Once the legal point had been settled, R (Evans) v Attorney General [2015] UKSC 21 Northern Ireland), or to the Court of Session 81 Section 1, Children and Young People at [81]. Although Lord Hope dissented in this the manufacturer’s settled the case and Mrs 64 A good example of the need to avoid apparent (the ‘black spider memos’ case) at [154]. (Scotland). Some specialist tribunals, such as (Scotland) Act 2014. case – meaning he disagreed with its outcome Donoghue’s claims were never examined by as well as actual bias is the Pinochet case, the court. considered in Chapter 2. 82 In response to a perceived and apparently

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undesirable proliferation of statute law. [2011] CSIH 58 117 There have been 29 declarations so far. 20 of Discrimination Act 1975, Race Relations http://researchbriefings.files.parliament.uk/ Another [2014] UKSC 19, [32]. these are ‘final’. This means that they are no Act 1976, Disability Discrimination Act 1995, documents/SN01156/SN01156.pdf 83 The Scottish Legal Tradition, Lord Cooper of 101 Moohan, Gillon v Lord Advocate [2013] CSOH 164 Lord Advocate’s Reference (No.1 2000) [2001] longer subject to any appeal. Employment Equality (Religion or Belief) Culross (published for the Saltire Society by 199; [2014] CSIH 56. 148 Equal Opportunities Committee, Removing S.C.C.R. 296 at [23]. Regulations 2003, Employment Equality Oliver and Boyd, 1949. (Saltire Pamphlets: no. 118 Section 10, Human Rights Act 1998. Barriers: race, ethnicity and employment, 102 Moohan and another v Lord Advocate [2014] (Sexual Orientation) Regulations 2003, 165 R v Jones and Others [2006] UKHL 16 at 7)). SP Paper 890, 1st Report, 2016 UKSC 67, at [10] (Lord Hodge). 119 The Scottish Human Rights Commission Employment Equality (Age) Regulations 2006, [27-31] (Lord Bingham); and R (Abassi) (Session 4), p. 1 available at http://www. 84 Webster v Behune (1857) 2 Irv. 596; Bell v website provides helpful information and Equality Act (Sexual v. Secretary of State for Foreign and 103 Austin v the UK (2012) 55 EHRR 14; Austin parliament.scot/parliamentarybusiness/ Black and Morrison (1865) 5 Irv. 57. on its duties and history, at http://www. Orientation) Regulations 2007. Commonwealth Affairs [2002] EWCA Civ. 1598 and Another v The Commissioner of Police of CurrentCommittees/96080.aspx. scottishhumanrights.com/. Scotland’s National at [85]. 85 Kennedy v The Charity Commission [2014] the Metropolis [2007] EWCA Civ 989. 134 Coleman v Attridge Law [2008] All ER (D) 245. Action Plan for human rights can be found 149 See http://www.parliament.scot/msps/disability. UKSC 20 at [46] (Lord Mance). 166 Available online at: https://www.publications. 104 As it does to Wales and Northern Ireland too. here: http://www.scottishhumanrights.com/ 135 Mandla v Lee [1983] 2 WLR 620. aspx. parliament.uk/pa/cm199900/cmselect/ 86 A v BBC [2014] UKSC 23 at [56] and [57] (Lord scotlands-national-action-plan/. 105 Similar restrictions exist in relation to the 136 Howe v JD Wetherspoon, 18 May 2015. 150 Fuller information about each of the institutions cmfaff/28/2813.htm. Reed). powers of Ministerial office holders in 120 Article 46 ECHR. of the EU can be found online at http://europa. 137 Hall v Bull, [2013] UKSC 73. 167 A number of other treaties – including the 87 Highland Regional Council v British Railways the Northern Irish and Welsh Assemblies eu/european-union/about-eu/institutions- 121 Manchester City Council v Pinnock [2010] International Covenant on Civil and Political Board 1996 S.L.T . 274. (s24(1) Northern Ireland Act 1998 and s81 138 RBS v Allen [2009] EWCA Civ 1213. bodies_en. UKSC 45, at [48] (Lord Neuberger). Rights – have a similar mechanism to let Government of Wales Act 2006). 88 West v Secretary of State for Scotland 1992 139 Lambert v Lewisham and Southwark College 151 C-50/96 Deutsche Telekom AG v Schröder individuals take their cases to an international 122 R v Horncastle [2009] UKSC 14. SC 385, at [413] (Lord Hope) 106 Salvesen v Riddell [2013] UKSC 22. (unreported), 21 May 2015. For case summary [2000] IRLR 353 at [56]. body for review. The UK does not accept this 123 Hutchinson v UK, App No. 57592/08, 3 see the University College Union website at route of complaint more generally. 89 See Eba v Advocate General for Scotland 107 Christian Institute and others v Lord Advocate 152 Although under the doctrine of ‘indirect February 2015. This case is currently being https://www.ucu.org.uk/article/7540/Lewisham- [2011] UKSC 29, at [46] and [47], and Council [2016] UKSC 51, see also chapter 2 of this effect’, in many disputes between individuals 168 Equality and Human Rights Commission, considered by the Grand Chamber of the and-Southwark-College-discriminated-against- of Civil Service Unions v Minister for the Civil Guide. courts will interpret national law in a way that The Commission’s work on UNCRPD. See European Court of Human Rights. A limited blind-disability-officer-tribunal-rules. Service [1985] AC 374 at [410] (Lord Diplock). conforms with EU law. https://www.equalityhumanrights.com/en/our- 108 Section 31(1), Scotland Act 1998. It used to number of cases can be reconsidered by the 140 Section 15, Equality Act 2010. human-rights-work/monitoring-and-promoting- 90 AXA General Insurance v Lord Advocate [2011] be that only Bills introduced by the Scottish Grand Chamber (17 judges of the Court sitting 153 Article 6 TEU. un-treaties/un-convention-rights-persons- UKSC 46, at [51] (Lord Hope) and [149] (Lord Government required a statement in respect of together). 141 Equality Act 2010, Part 5. 154 Art. 6(3)TEU. The EU is looking into ratification disabilities. Reed) legislative competence, but this was amended 124 Shalk and Kopf v Austria, App No. 30141/04, 142 Dumfries and Galloway v North [2013] UKSC 45. of the ECHR. This would make the EU a to include all other Bills – MSPs’ Members’ 169 P v Cheshire West and Chester Council and 91 Moohan and another v The Lord Advocate: 24 Jun. 2010. Contracting Party to that Convention. It would Bills, Committee Bills and Private Bills – by 143 Glasgow City Council and Others v Unison and Another [2014] UKSC 19 at [36]. [2014] UKSC 67, at [34] (Lord Hodge); [2014] mean that individuals could make complaints section 6 of the Scotland Act 2012. 125 Burnip v Birmingham City Council and another Fox Cross [2014] CSIH 27 CSIH 56, at [17] (Lady Paton). against the institution as a whole before the 170 See, for example, Joint Committee on Human [2012] EWCA Civ 629. 109 Section 31(2), Scotland Act 1998. 144 Section 149, Equality Act 2010. European Court of Human Rights. Rights, Nineteenth Report of Session 2005- 92 Campbell and Cosans v UK (1991) 13 E.H.R.R. 126 Pretty v UK (2002) 35 EHRR 1. 06, The UN Convention against Torture, HL 441. 110 For further reading, see Blackstone’s Guide to 145 See Employment Equality (Age) Regulations 155 Benkharbouche and Another v Embassy of the 185/HC 701, available online at https://www. the Human Rights Act 1998, 7th Edn, (2015). 127 Protocol No. 15 amending the Convention (NI) 2006; Disability Discrimination Act 1995; Republic of Sudan [2015] EWCA Civ 33. 93 Cadder v Her Majesty’s Advocate [2010] UKSC publications.parliament.uk/pa/jt200506/jtselect/ (available online at https://www.coe.int/en/web/ Disability Discrimination (Northern Ireland) 43 111 The ‘gays in the military case’ was decided at 156 The House of Lords also has an EU Committee jtrights/185/185-i.pdf. conventions/full-list/-/conventions/treaty/213). Order 2006; Equal Pay Act (NI) 1970; English and Welsh common law, but nothing which performs a similar function. 94 Human Rights Act 1998, Schedule 1, Parts 1 Sex Discrimination (NI) Order 1976; Race 171 HH v Deputy Prosecutor of the Italian Republic; indicates the decision would have been 128 S and Marper v UK [2008] ECHR 1581. and 2. Relations (NI) Order 1997; Fair Employment 157 s20(1) Constitutional Reform and Governance F-K (FC) v Polish Judicial Authority [2012] different in Scotland. 129 Hirst v the UK (No 2) [2005] 42 EHRR 849. and Treatment (NI) Order 1998; Equality Act Act 2010. See also, Part 2 Constitutional UKSC 25 at [98]. 95 Eweida v British Airways plc [2010] EWCA Civ 112 Section 3, Human Rights Act 1998. (Sexual Orientation) Regulations (NI) 2006. Reform and Governance Act 2010. 80. Ms Eweida lost her case before the Court of 130 R (on the application of Chester) (Appellant) 172 White v White 2001 SCLR Appeal. She did however win at the European 113 Ghaidan v Godin-Mendoza [2004] UKHL 30, at v Secretary of State for Justice (Respondent); 146 Equality Commission for Northern Ireland, 158 See Chapter 2 of this Guide (The Rule of Law). 173 www.slab.org.uk/public/ Court of Human Rights, after the Equality and [33] (Lord Nicholls). McGeoch (AP) (Appellant) v The Lord Gaps in Equality Law in Great Britain and 159 Interestingly, the Code was amended in Human Rights Commission, Liberty and others President of the Council and another Northern Ireland (2014), available online at 174 www.slab.org.uk/public/solicitor-finder/index.html 114 Section 6, Human Rights Act 1998. 2015 to remove the express reference to intervened in the case (Eweida and others v (Respondents) [2013] UKSC 63. http://www.equalityni.org/ECNI/media/ECNI/ international obligations. 175 www.slab.org.uk/public/criminal/eligibility/ the UK (2013) 57 EHRR 8). 115 YL v Birmingham City Council [2007] UKHL Consultation%20Responses/2014/Gaps-in- 131 McHugh and Others v UK App. No 51987/08, 27. See also Weaver v London and Quadrant Equality-Law-in-GB-and-NI-March-2014.pdf. 160 For latest version, August 2016, see http:// 176 www.scra.gov.uk/ 96 Article 15(1) ECHR. See also s14 Human 10 February 2015. Housing Trust [2009] EWCA Civ 587 (social www.gov.scot/Publications/2016/08/1393/0. Rights Act 1998. 147 SPICe, SPICe Briefing: Election 2016, 16/34, 177 www.slab.org.uk/public/criminal/eligibility/ housing) and R (A) v Partnerships in Care Ltd 132 The UK has not yet ratified Protocol 12 to 11th May 2016, p. 20 at http://www.parliament. 161 As defined in ss2A and 6 Children Act 2004. 98 Article 15(2) ECHR. [2002] 1 WLR 2610 (publicly funded mental the European Convention on Human Rights 178 At www.gov.uk/legal-aid/overview and www. scot/ResearchBriefingsAndFactsheets/S5/ health care in a private6facility). which would provide a freestanding equality 162 Although they tend to follow international nidirect.gov.uk/legal-aid respectively. 99 Al-Skeini v the UK [2011] ECHR 1093. SB_16-34_Election_2016.pdf. L. Audickas, guarantee within the Convention. consensus when doing so, see Lord Hope in R 116 Section 4, Human Rights Act 1998. Ethnic Minorities in Politics and Public Life, 179 It runs a blog on topical issues here https:// 100 Doherty, Philbin and Logan v Scottish Ministers v Asfaw [2008] UKHL 31, at [53]. 133 Including the Equal Pay Act 1970, Sex House of Commons Briefing Paper No. scottishparliamentinformationcentre.org/ SN01156, 28th June 2016, p. 9, available at 163 P v Cheshire West and Chester Council and

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Acknowledgments

This guide would not have been possible We also benefitted from the support We are especially grateful to the Law Currently, there are around 450 practising Members of Faculty also contribute to without the assistance of our Scottish and advice of politicians, academics and Society of Scotland and the Faculty of advocates senior (QCs) and junior counsel. the development of the law in Scotland by member volunteers, Gordon Dalyell, practitioners who gave their time to review Advocates for their generous support of the In the words of the former Lord President, providing articles and case commentaries Neil Deacon, Kenneth Campbell QC, Tim and improve the guide, Juliette Casey, project. Lord Gill, the qualities to which the Faculty on litigations in which they have been Haddow and Fred Mackintosh. We are Joanna Cherry QC MP, Christine Grahame is dedicated are: “…a commitment to involved. Several advocates have had (and immensely grateful for the time you have MSP, Margaret Mitchell MSP, Professor Tom excellence, a commitment to scholarship may continue to have) careers as academic taken to prepare the chapters of this guide. Mullen and John Scott QC. and learning, a commitment to the noblest lawyers, and have authored legal textbooks. ideals of professional conduct and, above Many advocates also speak at conferences on all, a commitment to justice for all in our cases in which they have been involved, or For more information on the society.” on areas in which they are expert. Several work of the Faculty of Advocates, hold positions as tutors in university Law Advocates specialise in advocacy – the art of please contact: Faculties. pleading a case, in writing or orally, before Web: www.advocates.org.uk courts and tribunals – and also provide The Faculty as a body frequently responds Twitter: @facofad expert legal advice, usually in the form of to law reform initiatives, whether from a written Opinion of Counsel. Advocates the , the Scottish Email: [email protected] are self-employed, and they are instantly Government or the Parliaments at Holyrood recognisable in court because they wear and Westminster. Normally, when a wig and gown. By virtue of having been consultation appears to the Faculty to relate admitted as an advocate, an individual is to a matter on which it should comment, entitled to appear in all courts and tribunals a subcommittee of members with relevant The legal profession in Scotland in Scotland, as well as in the UK Supreme expertise is assembled to prepare a written has two branches – advocates and Court, the Court of Justice of the European response, which is then sent on the Faculty’s solicitors. The Faculty of Advocates Union and the European Court of Human behalf. Sometimes, the Faculty will be asked dates from at least 1532, when the Rights. to follow up this response by attending a meeting of the committee scrutinising the Court of Session was established, and The Faculty’s cab-rank rule underpins access Bill implementing the proposed reform; in is the professional body to which to justice for all the people of Scotland. It such situations, an advocate involved in the advocates belong. Advocates hold lays down that no advocate can refuse to act, submission of the response will attend to a public office, and although they without a good reason, for anyone who offers assist members in any way he or she can. are admitted to that office by the a reasonable fee, and means that all advocates Court, the Court has delegated to the are available to be instructed by any solicitor Faculty the training and examination in Scotland, whether a small firm in Lerwick of intrants (those wishing to become or Langholm or a large firm in Edinburgh or advocates) and the exercise of Glasgow. The Faculty is proud of its pro bono professional discipline over advocates. work, through the Free Legal Services Unit.

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The Society’s website has a Find a Solicitor research and evidence basis for its policy facility to assist members of the public in positions. As an indication of the work locating the contact details of law firms and which it has undertaken over the last two individual solicitors throughout Scotland. operating years, between 1 November 2014 and 31 October 2015, the Society: The Society has a statutory duty to work in the public interest, a duty which it is • responded to 101 consultations from strongly committed to achieving through the Scottish and UK governments and its work to promote a strong, varied and the European Commission; effective solicitor profession working in For more information on the • commented on 20 Scottish Parliament the interest of the public and protecting work of the Law Society of Scotland, and 10 Westminster Parliament Bills; and promoting the rule of law. The Society please contact: seeks to influence the creation of a fairer • undertook 14 oral evidence sessions Web: www.lawscot.org.uk and more just society through its active at the Scottish Parliament and 1 oral engagement with the Scottish and United evidence session to the Scottish Affairs Twitter: @Lawscot Kingdom Governments, Parliaments, wider Committee of the UK Parliament; Email: [email protected] stakeholders and its membership. • 74 per cent of the Society’s proposed The Society and its many specialist amendments to legislation were tabled committees scrutinise legislation at both the by MSPs or MPs. Scottish Parliament and the UK Parliament, During the following year (2015/2016) suggesting amendments to improve the the Society commented on 44 Scottish The Law Society of Scotland is law and responding to consultations across consultations and 18 Bills in the Scottish the professional body for over a range of public policy areas to help our Parliament. 11,000 Scottish solicitors. With its Parliamentarians shape ‘good law’. In The Society will continue to consult and overarching objective of leading 2016, the Society formed a Public Policy collaborate with many of the organisations legal excellence, the Society strives Committee whose focus is on proactive involved with the legal sector as it strives to to excel and to be a world-class policy development. be a world class professional body. Insight, professional body, understanding It is therefore fundamental that the work expertise and information which supports and serving the needs of its members of the Law Society continues to inform mutual understanding between parliament and the public. The Society sets and the work of MSPs. It will continue to issue and the law, is invaluable. upholds standards to ensure the briefings to MSPs, highlighting what it provision of excellent legal services believes are the benefits of, or concerns In this publication, JUSTICE has succeeded in and ensure the public can have with proposed legislative change. The developing an important resource which can confidence in Scotland’s solicitor Society will continue to provide an effective be relied upon as a user friendly and engaging profession. point of reference for Scottish law makers. 59 Carter Lane London EC4V 5AQ [email protected] 020 7329 5100

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