On 11 September 2002 the Second Division of the Court of Session ruled that the Extra Division which had pronounced in the case of Davidson v Scottish Ministers 2002 SLT 420 had not been apparently impartial as a result of the participation on the bench of Lord Hardie, and that this was contrary to article 6 of the European Convention on Human Rights. In Davidson, a petition by prisoners in Barlinnie for interim orders of specific performance in judicial review proceedings against the Scottish Ministers, on the grounds that they were being detained in inhumane and degrading conditions contrary to article 3 ECHR, was held to be incompetent because under the Crown Proceedings Act 1947 as amended by the Scotland Act 1998 specific performance cannot be obtained against the Crown (see McDonald v Secretary of State for Scotland 1994 SC 234), which for these purposes includes members of the Scottish Executive. Lord Hardie as Lord Advocate had piloted the Scotland Bill through the House of Lords and had proposed the amendment which made members of the Executive officers of the Crown, while also rejecting as unnecessary a further amendment to protect the Executive from orders of specific performance. It was held that the commitment to this view of the meaning of the Crown Proceedings Act which Lord Hardie had expressed in Parliament meant that he could not be objectively impartial in considering the question anew as a judge, and that the decisions in Davidson were accordingly vitiated. The correct course for him would have been to disclose his difficulty at the outset of the case, to give the parties the opportunity to object. The reclaiming motion was appointed to be re-heard. Amongst other authorities the court refers to McGonnell v United Kingdom (2000) 30 EHRR 289 and Ex parte Pinochet  1 AC 119. See Davidson v Scottish Ministers 2002 GWD 28-959.
From Sep 04 2002 Business Day 1st Edition: –
THE South African Justice Department has taken issue with the opening remarks in Judge Willie Hartzenberg’s judgment in the Dave King case yesterday, which appear to be a generalisation about the spending habits of Scotsmen. In his written judgment, Hartzenberg said: Scotsmen are known to be thrifty. The first respondent (King) is a Scot. He cannot be accused of squandering his money on the unnecessary payment of income tax. Justice Department spokesman Paul Setsetse said that although the department had not had the opportunity of reading the remarks in their proper context, they appeared to have been unfortunate. Remarks which targeted a specific racial group were unfortunate and not in the spirit of the constitution which the judiciary has a duty to uphold. If remarks were made blindly against the Scottish community, then such remarks are regrettable and did not reflect the thinking of SA’s judiciary, Setsetse said. The Federated Caledonian Society of South Africa could not be reached for comment yesterday.
Thanks to Professor Gerhard Lubbe of Stellenbosch University for this item, which will no doubt have a certain resonance here in the light of Scottish Minister Ross Finnie’s recent apology for having described CBI Director General Digby Jones as an English prat.
Plans for a superquarry on Roineabhal mountain at Lingerbay in the national scenic area of South Harris continue despite many legal difficulties and a decision by the Scottish Ministers in 2000 that planning permission would be refused (see No 89). The plans, which involve the removal of 550 million tonnes of anorthosite for construction aggregate over 60 years, and entail the virtual disappearance of much of the mountain, were submitted to the Western Isles Council in 1991 but the report of the subsquent public inquiry was not handed to the Minister until 1999. Following the Minister’s decision to refuse permission, the contractors Lafarge Redland Aggregates issued a legal challenge which the Scottish Executive then announced would not be defended, recognising that the original decision letter was legally flawed. The Executive called for resubmissions in order to enable a new decision to be taken, the deadline being 26 July 2002. But it has now emerged that no decision will be taken until a decision has been reached on a further appeal by Lafarge, against a Ministerial ruling that a planning permission for a quarry at Lingerbay, granted in 1965, is now largely invalid. The whole saga is now Scotland’s longest-running planning application. For some interesting background see Alistair McIntosh, Soil and Soul: People versus Corporate Power (2001).
On 28 June 2002 Sheriff A M Bell at Edinburgh Sheriff Court granted interdict to a tenant retailer of Highland dress against its landlord who was held to have contravened a provision in their lease agreement that the landlord would not permit [any other retail unit in the premises] to be used for any purpose which includes the sale and hire of Scottish Highland dress and accessories. The landlord offered for sale in other units Scottish dirks, basket-hilted and other broadswords, and claymores, as well as tartan ties, hats and scarves in wool and silk. Sheriff Bell held, following expert evidence, that Highland dress and accessories in the lease included dirks but not claymores and basket-hilted or other broadswords, whether of Scottish design or not. It was also held that tartan ties were Highland dress but not tartan hats and scarves. The position of C U Jimmy headgear does not appear to have been discussed. See Geoffrey (Tailor) Highland Crafts Ltd v G L Attractions Ltd 2002 GWD 24-776.
On 8 August 2002 the Scottish Law Commission published its Report on Title to Sue for Non-Patrimonial Loss (Scot Law Com No 187). The repoprt proposes the extension of the list of persons entitled to claim damages for their grief and distress following the death of another caused by a third person’s delictual conduct. Under the Damages (Scotland) Act 1976 the list covers the spouse or opposite-sex cohabitant, natural parent and child of the deceased and also includes relationships through affinity (marriage) and half (but not full) siblings. The Commission proposes extension to same-sex cohabitants, adoptive, and other persons in the position of, parents and children, siblings and grandparents and grandchildren; while relations by affinity should be excluded.
The Commission also issued a Discussion Paper (no 120) on Damages for Psychiatric Injury on 13 August 2002. Both documents may be viewed at the Commission website, http://www.scotlawcom.gov.uk.