(68)  Nuclear weapons illegal: Greenock Sheriff Court

Ellen Moxley, Angie Zelter and Ulla Roder were accused in Greenock Sheriff Court of maliciously damaging an unmanned barge carrying sonar equipment and documents at the Faslane base which is part of the Trident nuclear submarine defence system. Sheriff Margaret Gimblett held, however, purporting to follow a 1996 ruling of the International Court of Justice, that nuclear weapons were illegal and that the actions of the three women were justified because they had been seeking to prevent the use of illegal weapons. She also had arguments based upon the Geneva and Nuremberg Conventions. The three women were released; the Crown is expected to seek the over-ruling of the decision, probably by way of a Lord Advocate’s Reference in the High Court of Justiciary. See further J Mayer, "Old human rights", 1999 SLT (News) 340. (27 October 1999)

(67)  More permanent judges

On 13 October 1999 it was announced that the maximum number of Court of Session judges was to be increased from 27 to 32. This took place against the background, not only of concerns over the judicial manpower required for the forthcoming Lockerbie trial and following Lord Justice Clerk Cullen’s appointment to preside over the Paddington rail disaster inquiry, but also of growing concern that the deployment of temporary judges in both the higher and the sheriff courts could be ruled a contravention of the European Convention of Human Rights in an appeal the result of which is expected to be announced shortly (see now No 70 above). On 22 October it was announced that 10 new permanent sheriffs were to be appointed. (23 October 1999)

(66)  Scots law against cybersquatters

Scottish Widows, a life assurance company, obtained an interdict from the Court of Session on 15 September 1999 to prevent Leisure Probe Ltd from using the domain names scottish-widows.com, scottish-widows.co.uk, and scottish-widows.tm on the Internet. Leisure Probe had registered the domain names, but the Court held that it had no right to use them in a way damaging to the goodwill of Scottish Widows. Scottish Widows have a registered domain name: scottishwidows.co.uk. (16 Sept 1999) On 7 January 2000 Haggis Backpackers, a company running bus tours from Edinburgh, obtained an interim interdict in the Court of Session against another company, Scottish Tours, also of Edinburgh, to prevent them from using the domain names haggistours.com and haggisbackpackers.com. Haggis Backpackers domain name is haggis-backpackers.com. The interdict prevented Scottish Tours from using domain names including the word "haggis". (10 Jan 2000)

(65)  Temporary sheriffs, the Lord Advocate and human rights

Further to No 62 below, a fresh challenge under the European Convention of Human Rights to the functions of the Lord Advocate as head of the public prosecution system in Scotland was considered in Linlithgow Sheriff Court on 30 July 1999. A prosecution before Temporary Sheriff David Crowe was challenged on the basis that, the Lord Advocate having a key role in the appointment and dismissal of temporary sheriffs, Sheriff Crowe could not be regarded as sufficiently independent of the executive to meet the requirements under Article 6 of the Convention that an accused have a fair hearing before an "independent and impartial tribunal". The argument was rejected on the basis that it had been raised too late in the proceedings; but it is understood that it is likely to be raised in other cases and will probably be appealed to the Court of Criminal Appeal. (31 July 1999)

(64)  Welsh language rights

On 20 July 1999 the Court of Appeal held that section 22 of the Welsh Language Act 1993, which provides for the use of the Welsh language "in any legal proceedings in Wales" had no application to an appeal to the Employment Appeal Tribunal sitting in London from a decision of an employment tribunal sitting in Wales (Times, 12 August 1999). Judge LJ expressed the hope that it would not be too long before the necessary administrative arrangements which would enable the EAT to sit regularly in Wales would be put in place. It has occasionally sat in Cardiff. In the case at issue, the employee, a Welsh- and English-speaking chef, claimed discrimination on racial grounds in that his employers had requested him to speak English, not Welsh.

(63)  Flags in the Wind

Thirty years ago a Scottish flag was a rarity and was invariably printed in the wrong colours. During the Coronation celebrations in 1953 the saltire and royal blue of St Andrew flew proudly above nearly every building in Scotland and strangers remarked that it far outnumbered every other flag on display. … Flags as well as straws show the way the wind is blowing. Movements of the spirit, springing from the most deeply rooted sentiments of the people, can never be denied their goal. There is no doubt in my mind that long before the end of this century the Parliament of Scotland will once more be opened with ancient pomp and ceremony and that in this new age the representatives of her people will make her a valued partner in the British Commonwealth and an ideal ground for experiments in human progress. The promise implicit in her long history will yet be fulfilled. Meantime the struggle goes on. We fight, not against oppression from without, but against the private ambitions and narrow partisanship of our own politicians. It has been a long race but the last lap is now to come. (Dr John MacCormick, The Flag in the Wind (1955), 198) There shall be a Scottish Assembly. … A referendum shall be held .. on the question whether effect is to be given to the provisions of this Act. .. If it appears to the Secretary of State that less than 40 per cent of the persons entitled to vote in the referendum have voted ‘Yes’ or that a majority of the answers given in the referendum have been ‘No’, he shall lay before Parliament the draft of an Order in Council for the repeal of this Act. (Scotland Act 1978, ss 1(1) and 85). There shall be a Scottish Parliament. (Scotland Act 1998, s 1(1); also inscribed on the mace of the Scottish Parliament). The Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened. (Winifred Ewing MSP, opening the first sitting of the Scottish Parliament following the swearing-in of the MSPs on 12 May 1999) The past is part of us. But today there is a new voice in the land, the voice of a democratic parliament. A voice to shape Scotland, a voice for the future. … A Scottish parliament. Not an end: a means to greater ends. (Donald Dewar, First Minister, replying to the Queen’s speech at the official opening of the Scottish Parliament on 1 July 1999)