To the obvious amazement, disbelief and discomfiture of the other parties (not to mention Westminster, Whitehall, the Prime Minister and the Chancellor of the Exchequer), the SNP became the largest party in the Scottish Parliament after the election held on 3 May 2007, taking 47 seats against 46 Labour, 17 Conservative, 16 Liberal Democrat, 2 Greens and 1 (there’s only one) Margo MacDonald. The smaller parties (notably the Scottish Socialists and Mr Sheridan’s Solidarity) and the other independents were wiped out. The turnout was 51.8%, an improvement on the 48% of 2003 (see previously No 226). But the election was severely tarnished by a huge number of spoiled ballot papers (over 146,000), caused not by protest but by voter confusion resulting from having to complete two different ballot forms using different voting systems (the Parliament election using a simple choice system for both constituency and list seats, while the local authority election deployed a single transferable vote system). Apart from the fact that some 3% of the electorate was disenfranchised by this chaos, there was also talk of legal challenges to outcomes in particular constituencies and regions; but in the end this came to nothing. The Electoral Commission (which set up the systems in the first place) will investigate and report in late summer 2007. There is no suggestion (in the end) that the problems affected the overall results. The SNP decided to form a minority government with Alex Salmond as First Minister, coalition talks with the LibDems and the Greens having failed to produce any agreement. The central plank of SNP policy is a referendum on independence for Scotland, to which all the other parties are opposed; it therefore seems that any Bill towards this end is doomed to fail. But it is also thought unlikely that the SNP government will face any early vote of confidence, since the electoral coffers of the opposition parties are drained by the expenses of the 2007 election, and funds generated over the next couple of years will be wanted for the next Westminster election, expected to be in 2009.
Sheriff Douglas Cusine, formerly a professor at Aberdeen Law School, entered the controversy about the Judicial Appointments Board for Scotland (see previously No 463) with a critical article published in the Scots Law Times on 26 January 2007 (2007 SLT (News) 9). Sheriff Cusine argued that the system was one in which good people were not being appointed to the bench and some were being deterred from applying; while the process also opened up the possibility of bad appointments. The Judicial Appointments Board was moved to a detailed rejoinder, published in the Scots Law Times for 27 April 2007 (2007 SLT (News) 79). Both contributions worth reading and containing food for thought, not least (to an academic) for the parallels being drawn in both articles with university appointments systems. Meanwhile, still no sign of legislation to make the JAB, as it were, legal”. “
SCOTTISH PARLIAMENT LEGISLATION SECOND SESSION
The Scottish Parliament concluded its second session on 29 March 2007. 81 Bills were considered altogether in the session, of which 15 fell or were withdrawn. Of the Bills previously mentioned in Scots Law News, the Christmas Day and New Year’s Day Trading (Scotland) Bill passed, including the provision that large stores are henceforth not to open on Christmas Day; with regard to New Year’s Day, however, Scottish Ministers are merely empowered to apply the same rule by statutory instrument but only after extensive consultation and laying before the Parliament a report about the economic impact, and the impact on family life, of large shops opening for the purpose of making retail sales on New Year’s Day. Alas, the Scottish Register of Tartans Bill (for which see No 608) did not complete its Parliamentary passage and was withdrawn.
Amongst other notable Bills passing into law were the Protection of Vulnerable Groups (Scotland) Bill (new arrangements for vetting those allowed to work with children), the Adult Support and Protection (Scotland) Bill (inter alia, significant amendments to the Adults with Incapacity (Scotland) Act 2000), the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill (allowing relatives of a deceased to claim solatium in respect of his death from cancers caused by exposure to asbestos in the course of employment even if the deceased made a successful claim in his lifetime – see previously Nos 555, 575, 579 and 585), the Crofting Reform etc Bill (aiming to simplify crofting legislation and the administration of crofting, allow new crofts to be created and crofters to undertake a wider range of activities on their crofts, and modernise crofting legislation to take account of changes such as the increasing interest in renewable energy development [i.e. wind farms] in crofting areas – see previously No 449) and the Criminal Proceedings etc (Reform) (Scotland) Bill (changing the law on summary criminal procedure and bail – see No 503).
On 20 March 2007 Lord Glennie ruled that for a prison to place a recorded message on phone calls made by inmates stating that the call was coming from a prison was a breach of their right to respect for their family life and correspondence under Article 8 of the European Convention on Human Rights (Potter v Scottish Prison Service  CSOH 56, available on the Scottish Courts website at http://www.scotcourts.gov.uk/opinions/2007CSOH56.html. Lord Glennie held that the Convention right was anyway part of the common law of Scotland, long before the ECHR, and that only the legislature could remove it. Prisoners as such were not deprived of their civil rights, and a blanket rule requiring the pre-recorded message to be on all outgoing calls could not be justified (especially when the prisoner could only make calls to an approved list of recipients). Politicians and the red-top media waxed furious about prisoners’ rights being considered ahead of those of victims, although it was not clear that the decision affected victims in any way whatsoever, and the Lord Advocate was said to be considering an appeal.