Law for Scottish lawmakers A JUSTICE guide to the law GLOBAL PRESENCE Allen & Overy is an international legal practice with approximately 5,000 people, including some 525 partners, working in 46 offi ces worldwide. Allen & Overy LLP or an affi liated undertaking has an offi ce in each of: Abu Dhabi Casablanca London Rome Amsterdam Doha Luxembourg São Paulo Antwerp Dubai Madrid Shanghai Athens (representative offi ce) Düsseldorf Mannheim Singapore Bangkok Frankfurt Milan Sydney Barcelona Hamburg Moscow Tokyo Beijing Hanoi Munich Toronto Belfast Ho Chi Minh City New York Warsaw Bratislava Hong Kong Paris Washington, D.C. Brussels Istanbul Perth Yangon Bucharest (associated offi ce) Jakarta (associated offi ce) Prague Budapest Johannesburg Riyadh (associated offi ce) Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP’s affiliated undertakings. www.allenovery.com 2 Law for Scottishlawmakers lawmakers | A JUSTICE | A guideJUSTICE to the guide law to the law 3 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? England, Wales and Northern Ireland The UK constitutional context Where next for legal help? Constitutional principles 33 Chapter 5: Rights 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 Human Rights Act 1998 The European Court of Human Rights 21 Chapter 3: Introduction to the law The Equality Act 2010 Primary and subordinate legislation The common law The role of judges What about international law? www.justice.org.uk 4 Law for lawmakersScottish lawmakers | A JUSTICE | A guideJUSTICE to the guide law to the law 5 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 Scotland 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 United Kingdom. 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 www.justice.org.uk 6 Law for lawmakersScottish lawmakers | A JUSTICE | A guideJUSTICE to the guide law to the law 7 Foreword Chapter 1: Law for lawmakers Lord President of the Court of Session; Introduction and principles that determine how our Lord Justice General of the High Court of Justiciary 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 Northern Ireland, 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 Scottish Parliament 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.