(110)  Foot and mouth in the courts: culls go ahead

At least four cases have come to the Court of Session as a result of the foot and mouth outbreak in Dumfries and Galloway and elsewhere in the UK, and the Government policy of containing and eradicating the disease by means of a cull of all hoofed animals within a 3-kilometre radius of any farm where an outbreak had occurred.  In Westerhall Farms v The Scottish Ministers, 25 April 2001, 2001 GWD 14-537, Lord Carloway refused an interim interdict to prevent a cull of cattle and sheep on the petitioners’ farm, rejecting arguments, inter alia, that it was a breach of Article 1 of the First Protocol to the European Convention on Human Rights (peaceful enjoyment of possessions).  The petitioners had claimed that the only part of their farm within 3 kilometres of the outbreak was a high boggy area where the sheep did not go, while the prevailing wind was from theirs to the infected farm. 

In Shepherd v The Scottish Ministers, 1 May 2001, 2001 GWD 15-570, Lord Carloway refused to interdict the slaughter of livestock at a farm in Sutherland, where the farmer in question had visited his brother’s farm in Cumbria during April and that farm had subsequently been declared an infected area. The farmer’s human rights argument was rejected on the basis that he would receive compensation for the animals killed and the government response to the problem was not disproportionate.

In a third case, Carolyn Hoffe of Glasserton sought unsuccessfully to prevent the slaughter of her five pet sheep (Dutch Zwartbles named Maggie, Matthew, Melissa, Emily and Eva) following an outbreak at nearby High Bishopton Farm.  She had previously barricaded the sheep in the living room of her house, having first taken out the carpet and furniture, and argued that they were not exposed to the risk of infection.  Lord Clarke, although not wholly convinced that the petition was without merit, held on 4 May that he was not prepared to order the suspension of the operation, and the slaughter was carried out that evening.

On 10 May 2001 Lord Clarke refused to interdict the culling of 17 goats and 9 sheep at the Mossburn Animal Sanctuary near Lockerbie, even although the last confirmed case within three kilometres of the sanctuary was on March 26 and the incubation period for the disease in sheep and goats had long passed. However, on 11 May the judge granted a stay of execution, to allow the putting of a new argument, to be heard on 15 May, to the effect that the decisions on the culls by the Scottish Executive being contrary to the European Convention on Human Rights, there was a devolution issue which should be referred to the Privy Council. On 14 May the Scottish Executive announced a change of policy and that possible culls would now be considered on a case-by-case basis, rather than taking place automatically if the 3 kilometre criterion was met, and the court action about Mossburn was adjourned, to allow testing of the animals and checking of the bio-security measures.

(109)  Is planning law contrary to human rights?

On 9 May 2001 the House of Lords ruled in the Alconbury case that the English & Welsh planning law procedure under which the Secretary of State for the Environment takes the final decisions on planning matters was not susceptible to challenge under Article 6 of the European Convention on Human Rights. Their Lordships made a number of adverse comments about the decision in the equivalent Scottish case, County Properties v Scottish Ministers 2000 SLT 965, which held that the equivalent role of the Scottish Executive in Scotland was a denial of the right to a fair trial under Article 6 (see below No 89). These comments followed an intervention in the English case by the Lord Advocate. The County Properties case is currently the subject of a reclaiming motion in the Inner House.

(108)  Edinburgh property prices and pulling out of the deal

In late April the sale of a house in Morningside, Edinburgh, attracted considerable publicity because the property, advertised at offers over £380,000, had gone for £850,000, apparently to a couple from England.  The sellers originally acquired the house for £72,000 in 1982.  But at the beginning of May it became public that the buyers had pulled out of the deal, presumably able to do so because a contract had not as yet been concluded through the finalisation of missives.

(106)  Scots law online: Greens (Westlaw) and Butterworths

In April 2001 W. Green launched Westlaw UK Scots Law. In addition to the Scots Law Times, Westlaw UK Scots Law includes legislation from Holyrood and Westminster – including the content of the Parliament House Book, journal articles from the Scottish Legal Journals Index, and a current awareness service providing daily updates on legal developments by 9am and throughout the day. Hypertext links allow users to click directly between legislation, case references and case reports.

At the same time Butterworths Scotland launched Scottish Case Digests Online, an electronic case digesting service. The service monitors decisions of the House of Lords, Privy Council, Court of Session, High Court of Justiciary and sheriff courts, and consists of short case summaries hypertext linked to the full opinion which is accessed from the digest by the click of a button. Cases are fully searchable by category, catchwords, citation etc. Additional information is provided on digested cases when it becomes available, such as where a full report can be found and the history of the case on appeal. Subscribers to Laws of Scotland Online will also benefit from hypertext links, enabling the user to jump directly from Stair Memorial Encyclopaedia references in the digest to the relevant paragraphs in the encyclopaedia. Hypertext links also allow subscribers to All ER Direct and The Law Reports to jump directly to relevant cases.

(105)  Kind words on Scots Law News

Thanks to Derek O’Carroll, advocate, who gives this site a favourable review in (2001) 46(4) Journal of the Law Society of Scotland 37: "a pithy account of interesting, quirky and important legal developments … worth a look from time to time". Point about the lack of a search facility noted, and we will seek to rise from four- to five-star quality for Derek’s next visit. He also has nice things to say about the Edinburgh Law Review – "the quality of the writing is always good or excellent and while the content of some articles can only be of interest to academics, much of it will be of interest to the practitioner". Needless to say, we concur and feel that there is nothing we can usefully add other than to draw attention to the subscription details to be found elsewhere on this website: (http://www.law.ed.ac.uk/Elr/FORM1.HTM)