(89)  Human rights roll on

The Human Rights Act 1998 came into force throughout the United Kingdom on 2 October 2000.  Meantime, a number of major decisions on Convention rights and devolution issues in Scotland under the Scotland Act 1998 were issued in the second half of 2000.  The system of planning inquiries was thrown into uncertainty by the decision in County Properties Ltd v The Scottish Ministers 2000 SLT 965 that the appointment by the Scottish Ministers of the reporter chairing such inquiries meant that they could not be independent and impartial tribunals within art 6(1) of the European Convention on Human Rights (see also the parallel decision of the High Court in R on the application of Holding & Barnes plc v Secretary of State for the Environment, Transport and the Region in England (Tuckey LJ and Harrison J), reported in The Times, 14 Dec 2000 and see Times Law Reports, 24 Jan 2001).  In McIntosh Petitioner 2000 SLT 1280, the High Court of Justiciary held that confiscation orders against convicted drug traffickers under the Proceeds of Crime (Scotland) Act 1995 contravened Article 6(2) of the European Convention on Human Rights (but cf the contrary decision of the Court of Appeal in England, Times, 28 Dec 2000).  In Lafarge Redland Aggregates Ltd v The Scottish Ministers 2000 SLT 1361 Lord Hardie held that the failure of, first, The Scottish Office, and then the Scottish Executive, to issue a decision on the fate of an application to develop a “superquarry” at Lingerbay on the Isle of Harris where the planning application had been made in 1991, an inquiry had closed in 1995, and the consequent report had been submitted in 1999, was a breach of Article 6(1) (fair and public hearing within a reasonable time).  In Hoekstra v HM Advocate 2001 SLT 28, the first decision of the Privy Council on these matters, it was held that the Scotland Act did not give the Judicial Committee a general power to review interlocutors of the High Court of Justiciary; the jurisdiction existed only if there was a devolution issue under the Act.  For the earlier history of Hoekstra, see below, no 78.  In Montgomery and Coulter v HM Advocate 2001 SLT 37, a case arising out of the second Chhokar murder trial (see No 88 below) , the Privy Council held that the test for whether the right to a fair trial under art 6 was infringed by prejudicial pre-trial publicity was similar to that to be applied in a claim of oppression at common law (for which see Stuurman v HM Advocate 1980 JC 111; X v Sweeney 1982 JC 70), save that the art 6 right could not be balanced against the public interest in the detection and suppression of crime.  Finally, in Brown v Stott 2001 SLT 59 the Privy Council held that the acts of the Lord Advocate as a prosecutor were capable of giving rise to a devolution issue, and over-ruled the High Court of Justiciary in holding that there was no breach of the right to a fair trial under art 6 in the provisions of the Road Traffic Act 1988 enabling a prosecutor to rely on a defender’s compulsorily obtained admission, in a case where she was charged with driving with excess alcohol in her blood, that she had been the driver of the car in question.  The court recognised the need for a fair balance between the general interest of the community and the personal rights of the individual. It was also reported in the press that, at the behest of parents citing art 8 of the Convention (respect for private and family life), Perth and Kinross Council had ordered its schools not to allow filming or photography at their Christmas shows (Times 15 Dec 2000); and that Mr Duncan McKeller of Aberdeen was suing his City Council for acting in a way incompatible with his peaceful enjoyment of his possessions (art 1 of the First Protocol to the Convention), by installing communal rubbish bins (“wheelie bins”) on the street where he lives (Times, Scotsman 14 Dec 2000).