Month: October 1998

On 22 March 2000 the twenty-ninth chief of the Clan MacLeod, John MacLeod of MacLeod, announced that he was putting up for sale at a price of £10 million the Black Cuillin mountain range in the Isle of Skye.  The money was needed to fund major roof repairs at the ancestral home, Dunvegan Castle.  Considerable public controversy ensued, fuelling further debates on issues such as rights of access and the right to roam, since the range is one of, if not the best-known hill-walking and climbing areas in Scotland. Questions were also raised as to the chief’s title to the property, which appears to rest on a 1611 royal charter under the Great Seal making no specific reference to the Black Cuillin, but granting “the lands and castle of Dunvegan together with  … their montibus … in the isle of Skye” (see the printed Register of the Great Seal, vol 7, no 458). But on 18 July 2000 the Crown Estate Commissioners, having taken counsel’s opinion, announced that it would not pursue any question of the MacLeod title to the Black Cuillin: there was a recorded title capable of including the mountains and evidence to support unchallenged possession for the prescriptive period. Meanwhile, on 21 June 2000 the sale of Scotland’s highest mountain, Ben Nevis, to the John Muir Trust, a conservation body, was completed for a price of £450,000. The Ben had been in the ownership of the Faifax-Lucys, a family of landowners from the West Midlands of England, since 1834, when they acquired it from the previous owners for under £1,000. Legislation on rights of access to land for informal recreation and passage is expected in the 2000-2001 session of the Scottish Parliament (see further (1999) 3 Edinburgh Law Review 127, at 128).

“The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament as a body which – however important its role – has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law. … Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments. Indeed I find it almost paradoxical that counsel for a member of a body which exists to create laws and to impose them on others should contend that a legally enforceable framework is somehow less than appropriate for that body itself. Members of the Scottish Parliament hold office by virtue of the [Scotland] Act [1998] and, again, their rights and duties derive ultimately from the Act. Qua members of the Parliament, just as in all the other aspects of their lives, they are in general subject to the law and to the decisions of the courts. Of course, in Sections 41 and 42 the Act makes certain specific provisions to ensure freedom of speech for members of the Parliament and to permit proper reporting of its proceedings. In addition Section 40(4) recognises one particular respect in which the position of members vis à vis the courts is different from the position of other people: in certain situations the courts cannot grant an order for suspension, interdict, reduction or specific performance (or other like order) against them. But the immunity thus granted to the members of the Parliament is not granted in order to afford protection to the members themselves but simply to buttress the immunity of the Parliament from orders of that kind. In other respects the law applies to members in the usual way.” (per Lord President Rodger, in Whaley and Furness v Lord Watson of Invergowrie and the Corporate Body of the Scottish Parliament, 16 February 2000, 2000 GWD 8-272)

Human rights continues to cause difficulties in the administration of criminal justice in Scotland.  The most notable case (because it involves a UK statute) is Brown v Stott 2000 SLT 379, in which the High Court of Justiciary held that Article 6 of the European Convention of Human Rights (right to a fair trial) and the consequent right to silence and right against self incrimination was infringed by use of evidence obtained under s 172(3) of the Road Traffic Act 1988, under which it is an offence for the keeper of a motor vehicle to fail to give information to the police when required to do so as to the identity of the driver of a motor vehicle when that driver is alleged to have committed offences.  It is understood that this case will go to the Privy Council.

Article 6 was again invoked in Hoekstra v H M Advocate (No 3) 2000 GWD 12-417. The substance of the appeal in that case, following a conviction on drugs charges in the High Court, had been that certain aspects of the trial procedure breached the accused’s rights under Articles 6 and 8 of the ECHR. The hearing before the appeal court concluded on 3 December 1999 and the court issued its opinion on 28 January.  Lord McCluskey, one of the members of the appeal court bench, had retired from office on 8 January. During February the newspaper Scotland on Sunday ran a series of articles by him reflecting on the Scottish legal system and commenting extensively on the ECHR. Lord McCluskey quoted  his own words as Reith Lecturer in 1986 when he warned that the Canadian Charter, copied from the ECHR, provided “a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers”. He then added: “Prophetic or what?”. A motion that the appeal court bench should disqualify itself and different judges be appointed was granted rapidly thereafter. In his judgment, the Lord Justice General  referred to the apprehension of bias created by the articles, and he stressed the importance of the “tone of the language and the impression which the author deliberately gives that his hostility to the operation of the Convention…is both long-standing and deep-seated. The position would have been very different if all that Lord McCluskey had done was to publish, say, an article in a legal journal drawing attention, in moderate language, to what he perceived to be the drawbacks of incorporating the Convention into our law”. Meantime, in the continuing fall-out from the decision against temporary sheriffs in Starrs v Ruxton 2000 SLT 42 (see (2000) 4 Edinburgh Law Review 1, below No 70), Jim Wallace, the Minister of Justice (who also became acting First Minister in the absence of Donald Dewar following a heart bypass operation), has further indicated that both a judicial appointments commission and a human rights commission will be established in future.  The Scottish Executive consultation document on judicial appointments can be viewed at http://www.scotland.gov.uk/consultations/justice/jaia-00.asp. The debate about judicial appointments intensified after the Lord Advocate, Lord Hardie of Blackford, was elevated to the bench on 17 February 2000, the appointment being by the Queen on the recommendation of the First Minister who will have consulted the Lord President and the Lord Advocate.  The Lord Advocate’s promotion also caused controversy in the light of the imminence of the Lockerbie trial, at which he would have headed the prosecution.  Meantime, in the European Court of Human Rights it was held to be incompatible with Article 6 of the Convention for a judge to have any direct involvement in the passage of legislation or of executive rules a dispute over which might subsequently have to be resolved by him or her (McGonnell v United Kingdom, The Times, 22 February 2000).  The decision immediately cast doubt upon the position of the Lord Chancellor and over the participation by Scottish judges in legislative debates at Westminster.

 The vexed issue of who is responsible for the disposal of dead stranded whales (see (1997) 1 Edinburgh Law Review 406, Archive No 15) took a new twist early in February 2000, when the carcase of a sperm whale was found wedged on the rocky shore of the isle of Vaila in the Shetlands.  The Receiver of Wrecks argued that, if the remains exceeded 46 feet in length so that they fell to the Crown as a royal fish, responsibility had been devolved to the Scottish Executive under the Scotland Act 1998.  The Executive reserved its position.  The matter was resolved – or, perhaps, left unresolved for the time being – when the remains were found to be 41 feet long, meaning that the Crown had no claim to the whale and that its disposal was for the Shetland Islands Council.

The New Year’s Honours List for January 2000 included a knighthood for Sheriff Gerald Gordon QC, author of the standard work, The Criminal Law of Scotland (2nd edition, 1978), and editor of Renton & Brown’s Criminal Procedure and the Scottish Criminal Case Reports for many years.

Twelve new sheriffs were appointed on a permanent basis on 10 December 1999. They included Rajni Swanney, the first judicial appointment from an ethnic minority group in Scotland as well as a woman. On 17 December 1999 Ann Paton QC was appointed to the Court of Session/High Court of Justiciary bench, only the second female appointment in those courts. Also appointed at the same time was JohnWheatley QC, who had previously held a temporary appointment. He is the son of the former Lord Justice Clerk Wheatley.