Professor Neil Walker of the University of Edinburgh today (22 Jan 2010) published his report to the Scottish Government on the position of the new (UK) Supreme Court within the context of the current constitutional settlement (in Scotland).

As you know, the current position is that in civil cases, a right of appeal lies from the Inner House of the Court of Session to the Supreme Court. In criminal matters, the High Court of Justiciary (sitting in an appellate capacity) is the final court of appeal. Unless there is a "devolution matter" raised (usually a human rights point), in which case the Supreme Court will take a look. Happy so far? Good.

It is also worth noting that civil appeals to the Supreme Court from the Court of Session do not require leave to appeal (from either Court) - unlike in England & Wales.

So, Prof. Walker (ably assisted by a select steering group comprising Sir David Edward, David Johnston QC and Prof. Tom Mullen) has now delivered his view on appeals to the Supreme Court concluding as follows:

1. If Scotland were to become independent, then the judicial system should also be independent, with all cases being determined in Scots courts and no further appeal to the Supreme Court.
2. Under current arrangements (devolution), then in cases (civil or criminal) involving only devolved issues - the Court of Session / High Court should be the final stage of appeal. However in cases (civil or criminal) which involve a reserved matter (e.g. employment law or tax fraud) then a final appeal should lie to the Supreme Court.

I happened to share a train back from Edinburgh today with one of the steering group, who was kind enough to share his thoughts on some of the implications. For what it's worth, I share the view that if Scotland became an independent country, then rights of appeal to the Supreme Court should cease altogether. If we're leaving home, then those apron strings must be cut too (is that the correct expression?).

The proposals for the devolution (or "devo-max") scenario would involve a decrease in the number of Scottish civil cases being heard by the Supreme Court, but an increase in the numbers of criminal cases. Such changes would also require to be enacted (at least in part) by the Westminster Parliament, rather than by Holyrood alone.

The prohibition in the Act of Union 1707 that "no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall;" (Article 19) has presumably been overcome now that the Supreme Court has moved across the street to Parliament Square?

Labels: criminal law, Inner House, News, Scottish Government, UK Supreme Court

Today, 10 December, sees the anniversary of the death (in 1747) of Duncan Forbes, Lord Culloden (1685-1747).

Studying law at Leiden University, he became an advocate and sheriff of Midlothian in 1709. He was elected MP for Inverness in 1722 and was appointed Lord Advocate in 1725.

In 1737 he was raised to the position of Lord President where he was active in the enforcement of revenue laws, and took a prominent part in opposing punishment of Edinburgh for the Porteous Riots.

Like many Scots Forbes supported the Hanoverian cause and used his influence to dissuade a number of clans from joining the Jacobites. However he later tried his best to mitigate the terrible reprisals following the Battle of Culloden.

Labels: From the Archives, Inner House

For some considerable time (20 years or more), people in Scotland who knew about such things would have told you that the parents of children with special educational needs (or, latterly, additional support needs) have the same rights to make a placing request as other parents. However, they were just plain wrong. We now know - thanks to the judgement of the Lord President, Lord Hardie and Lord Macphail in W.D. v. Glasgow City Council [2007] CSIH 72 - that the right to make a placing request is restricted if you child has additional support needs. Restricted, that is, to the boundaries of the local authority area in which you happen to live.

Three cheers, then to the Scottish Government who are proposing to reverse the Inner House's decision and give the parents of pupils with additional support needs the right to make a placing request to whichever school they damn well please!

However, it appears that this seemingly uncontroversial proposal has caused some concern in certain quarters. Discussion on this point has reached the national media.

Check me out! I am quoted with my Govan Law Centre hat on in these articles:

• Hope for Children who Need Help in Class, The Herald 28 July 2008
• The Hidden Cost of Choice, The Herald 29 July 2008
• Govan Law Centre Welcomes Support for Change in Classroom Choice

Labels: Education Law, Inner House, News, Scottish Parliament

The Inner House of the Court of Session, in hearing an appeal against the decision of a sheriff (who happens now to be the Sheriff-Principal of Glasgow and Strathkelvin) in Glasgow Sheriff Court, has raised concerns about that court's use of conference calls and e-mails.

While being very careful to stress that they were not considering the matter in any detail, Lord Reed went on to make several statements which could only be described as critical.

For example, he stated: "It is a general principle, of constitutional importance, that the administration of justice should take place in open court." He then quoted Lord Diplock in the case of Attorney General v Leveller Magazine Ltd [1979] A.C. 440: "If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice ....requires that [proceedings in court] should be held in open court to which the press and public are admitted."

Lord Reed even went so far as making reference to Article 6 of the European Convention on Human Rights and quoted from the jurisprudence of the Strasbourg court (without ever considering the matter in detail, of course).

The Court was evidently concerned that "It is apparent that the discussion in the e-mails passing between the sheriff and the parties' solicitors went beyond administrative matters of the kind which might otherwise have been dealt with by a clerk of court (such as the enrolling of motions, the lodging of pleadings, and the ascertainment of dates when counsel were available). As in the example just mentioned, some of the e-mails contain legal submissions which could have been made at a judicial hearing." As an example, the Court noted "A number of e-mails passed between the sheriff and the parties' solicitors prior to the hearing for further procedure. They illustrate how such an exchange can develop, in effect, into a form of hearing."

Conference calls and e-mail communication are increasingly used in Sheriff Court procedure and can be a quick way of settling procedural matters. However, as the Court noted, such developments "require to be considered with care, bearing in mind that convenience is not the only (or the most important) consideration."

• Read the Anna Jackson v. Hughes Dowdall [2008] CSIH 41 decision in full.

Labels: Human Rights, Inner House, News