Wendy departs: who next to lead Labour in Scotland?

Wendy Alexander resigned as leader of the Scottish Labour Party on 28 June 2008 after the Scottish Parliament Standards Committee recommended by a 4-3 majority that she be suspended as an MSP for one day for failure to register timeously donations made to her leadership campaign in autumn 2007.

The donations in question were those whose existence was revealed after the Electoral Commission had investigated another one from non-UK citizen Paul Green and declared it illegal but not one which it wished to pursue further.  Parliamentary Standards Commissioner Dr Jim Dyer however investigated these further donations and declared them also illegal; it was not enough that Alexander and her team had, perhaps somewhat belatedly, sought advice from parliamentary officials who had advised that the donations did not need to be registered (see No 736).  The Crown Office decided against a prosecution (see No 762).  But this still left the matter in the hands of the Scottish Parliament committee, and it made its recommendation on 26 June

The fact that the committee majority consisted of three SNP and one LibDem MSP led Ms Alexander to complain in her resignation statement about a political witch-hunt against her; but one has to wonder why there was such shyness about registering all these donations in the first place, when the whole issue has haunted, not only the Scottish, but also the UK Labour Party at the very highest levels for a number of years.  Scots Law News also suspects that it would not only be a Labour Party issue were the full truth about party finances ever to be revealed.

 Meantime, we can start to speculate about who next in the Scottish Labour hot seat.  Cathy Jamieson, Wendy Alexander's deputy, steps up again to lead during the interregnum, and maybe this time she will get the ultimate prize.  But no doubt Andy Kerr, Margaret Curran and perhaps Iain Gray will want to have a shot as well.  But the emergence of a dark horse from amongst the Labour ranks might well be more welcome to an ever more doubtful electorate. 

Celebrating 60 years of universal human rights?

Scots Law News at last got invited to a film premiere on 28 June 2008 but it wasn't Stone of Destiny (see here) but rather The New Ten Commandments, a film marking from a Scottish perspective the sixtieth anniversary of the Universal Declaration of Human Rights.

The film, which was shown at the Edinburgh Filmhouse as part of the Edinburgh International Film Festival, is actually a collection of 10 shorts by different directors, each dealing with a particular human right.  Some of the material would have been familiar to readers of Scots Law News: Jim Swire talking about the death of his daughter in the Lockerbie disaster, the contempt of court charges faced by Aameer Anwar (incidentally Scots Law News learned that the High Court will pronounce on the matter on 1 July), and, on an altogether lighter note illustrating the right to privacy (!), the case of the "cycle-sexualist"

There were also some characters completely new to Scots Law News, such as Peter Dow the self-styled National Standard Bearer who is in apparently solitary splendour campaigning for Scotland to become an independent socialist republic.  He was shown protesting against the Queen opening the Scottish Parliament, standing alone with his banner in a police-guarded pen some hundreds of yards away from the building, while that fine body of men, the Royal Company of Archers, paraded before him with their bows and arrows.  Mr Dow was a guest at the premiere along with Mr Anwar and other notables.

Altogether the film powerfully raises questions about what human rights actually mean in modern Scotland, it was by no means all negative.  The fact that such a film can be made and shown to a large audience gathered on a reasonably sunny Saturday afternoon is surely a positive in itself.  And there was a heartening section on local community support for asylum-seekers in Glasgow, as well as a nicely intimate piece in which Tilda Swinton explained to her 8-year-old son what people dreamed about before movies and film director Mark Cousins responded with a letter to his 8-year-old self in mid-1970s Belfast about the joy he would soon begin to discover through films and film-making. 

For those who see the film and worry about the sheep that is the centre of the section on the right not to be tortured, the closing credits reassure you that no animal was harmed in the making of the piece.  However, it made Scots Law News wonder more about the right not to have one's emotions manipulated by film-makers than about torture.

The day was pleasantly rounded off with a reception hosted by Edinburgh College of Art in its new Evolution House building in West Port.  From the rooftop where the reception took place came the unexpected bonus of unusual views of the Castle (saving the regrettable presence of Argyll House just above eye level) and onwards to the Grassmarket and the Old Town.  As our own tribute to the Universal Declaration of Human Rights we therefore offer some of our attempts to capture the scene by way of a mobile phone camera.










Railway grafitti artist Daze is sprung

A 28-month jail sentence for vandalism, imposed on self-styled grafitti artist Gary Shields (aka Daze), was overturned by the Court of Criminal Appeal on 27 June 2008.

Shields' original sentence was imposed by Sheriff Colin Miller at Ayr in March after he admitted maliciously painting trains and other railway property at a wide range of locations in the west of Scotland over a two-year period.  It was claimed that the damage cost £12,000.  Shields had spent two months in Barlinnie before the success of his appeal.  "Daze" was Shields' graffiti signature or 'tag', and the sentence led to an Internet "Free Daze" campaign (see e.g. here and here).  The appeal judges apparently have in mind a community service disposal and a compensation order, but will take a final decision later.  No written judgement has yet appeared on the Scottish Courts website.

Joelle Godard

With great sadness Scots Law News records the death of Joelle Godard, Edinburgh Law School friend and colleague, on 15 June 2008.  She was only 51 but had been very ill for some months.

Joelle taught at the Edinburgh Law School from the late 1980s on, working mostly on comparative criminal law with special reference to France and Scotland.  Her commitment, open approach, and care for her students made her courses very popular.  She also became extremely well-known in the Scottish legal professions, partly for courses on French law, but also because of her leadership in organisations such as the Franco-British Lawyers Association (for which she received the Chevalier des Palmes Academiques from the French Government in 2004).  She was also for several years Director of the European Young Lawyers Programme in Scotland, funded by the British Council.










Commitment, care and the spirit of innovation and determination in the face of adversity were the hallmarks of Joelle's personality, but her Edinburgh colleagues will also miss her half-smile and bob of greeting in the corridors and stairs of Old College, as well as the enthusiasm with which she would put forward and embrace a new idea, and finally remember the exceptional affection in which her students held her.  Our sympathy goes to her family and many friends, whose feelings showed in the numbers who went to her funeral in Dunfermline crematorium on 20 June.

The Law School's own tribute is here.  Obituaries also appeared in The Scotsman and the Edinburgh Evening News on 1 and 2 July respectively.

Habeas corpus and the nobile officium

While we are on the subject of confusion about habeas corpus in Scots law, Scottish Law Commissioner Professor Gerry Maher QC reminds us of the curious case of Wan Ping Nam v v Minister of Justice of the German Federal Republic 1972 JC 43.

Wan Ping Nam was a Chinese seaman who claimed to be a British subject.  While serving on a German ship passing through Scottish waters, he was arrested in connection with the death of a fellow crewman and held in custody at Barlinnie while Germany commenced extradition proceedings to have him tried in Bremen, where the ship was registered.  The law as it then stood laid down that British subjects could not be extradited to Germany, while the Extradition Act 1870, applicable throughout the UK, provided that a person held in prison awaiting possible extradition could apply for a writ of habeas corpus to procure his release.  The question was how to apply this provision in Scotland where, as Lord Justice General Emslie confirmed, the writ of habeas corpus "does not run … and is wholly unknown to our law".  Wan Ping Nam was granted the right  to seek liberation instead by way of a petition to the nobile officium of the High Court of Justiciary, this being necessary to give effect to the plain intention of the legislature in the 1870 Act.

US Supreme Court: why habeas corpus did not run in Scotland

Thanks to Aidan O'Neill QC for drawing our attention to Kennedy J's 5:4 majority speech in the US Supreme Court judgment in BOUMEDIENE v. BUSH, issued 12 June 2008, which opines curiously on Scottish constitutional history in holding that habeas corpus runs even for alien enemy combatants detained in Guantanamo.

Kennedy J writes:

“The [US] Government argues, in turn, that Guantanamo is more closely analogous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities as King of Scotland and Elector of Hanover). See Cowle, 2 Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be cited for the proposition that, at the time of the founding, English courts lacked the “power” to issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as “foreign.” Ibid. But what matters for our purposes is why common-law courts lacked this power. Given the English Crown’s delicate and complicated relationships with Scotland and Hanover in the 1700’s, we cannot disregard the possibility that the common-law courts’ refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns. This appears to have been the case with regard to other British territories where the writ did not run. See 2 R. Chambers, A Course of Lectures on English Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the view of Lord Mansfield in Cowle that “[n]otwithstanding the power which the judges have, yet where they cannot judge of the cause, or give relief upon it, they would not think proper to interpose; and therefore in the case of imprisonments in Guernsey, Jersey, Minorca, or the plan­tations, the most usual way is to complain to the king in Council” (internal quotation marks omitted)). And after the Act of Union in 1707, through which the kingdoms of England and Scotland were merged politically, Queen Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his opinion in Cowle in 1759, Scotland was no longer a “foreign” country vis-à-vis England—at least not in the sense in which Cuba is a foreign country vis-à-vis the United States. Scotland remained “foreign” in Lord Mansfield’s day in at least one important respect, however. Even after the Act of Union, Scotland (like Hanover) continued to maintain its own laws and court system. See 1 Blackstone *98, *109. Under these circumstances prudential considerations would have weighed heavily when courts sitting in England received habeas petitions from Scotland or the Electorate. Common-law decisions withholding the writ from prisoners detained in these places easily could be explained as efforts to avoid either or both of two embarrassments: conflict with the judgments of another court of competent jurisdiction; or the practical inability, by reason of distance, of the English courts to enforce their judgments outside their territorial jurisdiction. Cf. Munaf v. Geren, ante, at 15 (opinion of the Court) (recognizing that “‘prudential concerns’ . . . such as comity and the orderly administration of criminal justice” affect the appropriate exercise of habeas jurisdiction).

In 1759 the writ did not run to Scotland but did run to Ireland, even though, at that point, Scotland and England had merged under the rule of a single sovereign, whereas the Crowns of Great Britain and Ireland remained separate (at least in theory). See Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone *100–101. But there was at least one major difference between Scotland’s and Ireland’s relationship with England during this period that might explain why the writ ran to Ireland but not to Scotland. English law did not generally apply in Scotland (even after the Act of Union)but it did apply in Ireland. Blackstone put it as follows:“[A]s Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws.” Id., at *100. This distinction, and not formal notions of sovereignty, may well explain why the writ did not run to Scotland (and Hanover) but would run to Ireland.

The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government’s analogy.”

See too Scalia J (dissenting – surprise !): width=400









"See Note on the Power of the English Courts to Issue the Writ of Habeas to Places Within the Dominions of the Crown, But Out of England, and On the Position of Scotland in Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf­ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856, 97 Eng. Rep. 587, 599 (K. B. 1759). … [T]he writ has never extended to Scotland, which, although united to England when James I succeeded to the English throne in 1603, was considered a foreign dominion under different Crown—that of the King of Scotland. Sharpe191; Note on Habeas 158. (My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly included Scotland among the places to which the writ could run).    That is why Lord Mansfield wrote that “[t]o foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland . . . .” Cowle, supra, at 856, 97 Eng. Rep., at 599–600 … … The Court dismisses the example of Scotland on the grounds that Scotland had its own judicial system and that the writ could not, as a practical matter, have been enforced there. Ante, at 20. Those explanations are to­tally unpersuasive. The existence of a separate court system was never a basis for denying the power of a court to issue the writ. See 9 W. Holdsworth, A History of Eng­lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El. and El. 487 (1861)).   And as for logistical problems, the same difficulties were present for places like the Channel Islands, where the writ did run. The Court attempts to draw an analogy between the prudential limitations on issuing the writ to such remote areas within the sovereign territory of the Crown and the jurisdictional prohibition on issuing the writ to Scotland. See ante, at 19–20. But the very authority that the Court cites, Lord Mansfield, ex­pressly distinguished between these two concepts, stating that English courts had the “power” to send the writ to places within the Crown’s sovereignty, the “only question” being the “propriety,” while they had “no power to send any writ of any kind” to Scotland and other “foreign do­minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600. The writ did not run to Scotland because, even after the Union, “Scotland remained a foreign dominion of the prince who succeeded to the English throne,” and “union did not extend the prerogative of the English crown to Scotland.” Sharpe 191; see also Sir Matthew Hale’s The Prerogatives of the King 19 (D. Yale ed. 1976).

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspen­sion Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “func­tional” test for the extraterritorial reach of habeas corpus(and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misde­scribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliensabroad absent statutory authorization. And, most tragi­cally, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent (Note -= not “respectfully”)."

Scalia J, who of course lectured in Edinburgh in December 2007, seems to Scots Law News to have the better grasp of Anglo-Scottish legal relations post-1707, whether or not that undermines the reasoning of the majority in Boumediene.  As Aidan O'Neill notes, "perhaps there should have been a Scots law informed amicus brief."  On the other hand, what did the Lord President and Stephen Woolman QC (as he then was) have to say that made the Great Dissenter listen so intently post-lecture last December?


Pleural Plaques Bill introduced

The Damages (Asbestos-related Conditions) (Scotland) Bill was published on 23 June 2008.

This is the Bill that will reverse (but for Scots law only) the House of Lords judgment in Johnston v NEI International Combustion Ltd [2007] UKHL 39 that asymptomatic pleural plaques (an asbestos-related condition) do not give rise to a cause of action because they do not signify damage or injury that will found a claim for damages in delict (see previously Nos 691, 709 and 752).

There will be no equivalent legislation in England & Wales. 

Naked Rambler in Barlinnie segregation unit

The Sunday Express for 22 June 2008 reports that Naked Rambler Steve Gough has been moved from Edinburgh's Saughton Prison to Glasgow's Barlinnie, where he is in the segregation unit.

For the Sunday Express the big angle is how much this is costing the taxpayer, saying that the average prisoner costs around £34,000 a year, but that segregation unit prisoners cost more thanks to the intensive staffing levels needed.

 There is however a quote from Tory MSP Bill Aitken: "There can be no doubt that his time in custody is not commensurate with his offence, and he is not a danger to the public, but what can you do?"

The newspaper also reports that recently the police struck a deal to drive Gough to the (presumably English) border to release him, but he changed his mind en route and insisted on getting out of the car.

Gough's ex-girlfriend Melanie Roberts gives "Barrel Annie" (see No 796) an endorsement in the article, being quoted as saying "Barlinnie is OK.  He doesn't like the food as much in the new prison but the cell is sound-proofed."  That's all right, then.

Narked about Narnia on the Net (2)

Readers interested by this story may like to follow up on the blog of Jonathan Mitchell QC, who has uncovered some more interesting data on the matter. 

It appears that Mr Saville-Smith, the aggrieved father, is a "domain parker", who has some 30 domain names "parked" on Sedo.com, a website which aims to "democratize so-called domain-squatting".  His Narnia.mobi site can be viewed here – be warned, it's exciting stuff.

Thanks to the diligence of our reporters we can add our own sixpennorth as follows:

Mr Saville-Smith himself has a website where he now acts as a media consultant (http://saville-ferguson.co.uk/) and describes himself (as Jonathan Mitchell also notes) as "pretty darn brainy – no need to question our ability then, as 'media' people, to deal with complex issues or research…".  http://saville-ferguson.co.uk/aboutus.html.  The site also claims that "In the media, giving it 'Big Licks' – bringing lots of energy, ideas and commitment to achieve a big bag of coverage – is what we do best. We're
never happier than reviewing a fat pile of our clients' cuttings and recordings. We'll take your campaign, event or report and work it up into something the national media in Scotland – or UK-wide media – will want to cover. We are very experienced in doing 'issues', so we will never lose sight of yours. Because we're credible and known to the Scottish national media, we're best placed to represent your story to them. We'll never oversell a story (that's why they like us), but we will discover your story's best and strongest points and energetically inject them into the media – ideas, meticulous and conscientious preparation, well-written press materials, pictures, stunts and judicious use of celebrities, come as standard. Always bespoke, always colourful – yet careful and sensitive to the needs and image of your organisation or campaign – our work will get you noticed. We are consistently friendly and fun to work with, as well as being articulate and effective communicators. And we are always fully committed to your aims – otherwise we won't take your story on. "

Stone of Destiny launch

Scots Law News had the pleasure of attending the launch of the new edition of fellow-blogger Ian Hamilton's book Stone of Destiny on the evening of 20 June 2008.

The book first appeared as No Stone Unturned in 1952, less than two years after Mr Hamilton and three other young persons from Glasgow had successfully abstracted the Stone from its then place in Westminster Abbey and brought it back to Scotland, some 650 years after King Edward I of England had plundered it from Scone Abbey in Perthshire.  There hitherto the Stone had for an indefinite period played a significant role in the inauguration ceremony of the kings of Scots; now it became a key element in the English and, after 1707, the British coronation ritual. Although in 1951 the Stone returned to Westminster after its brief Scottish adventure, in 1996 it was officially brought back to Scotland (see No 2), and now reposes in Edinburgh Castle, although it will continue to be used in any future coronation ceremonies at Westminster.

No Stone Unturned was first republished in 1991 as The Taking of the Stone of Destiny, and Ian Hamilton has also written about the events of 1950 in his entertaining memoirs, A Touch of Treason (1990) and A Touch More Treason (1994).  The new edition of his first book has of course everything to do with the film Stone of Destiny, which premieres at the Edinburgh International Film Festival on 21 June.

The latest edition of Mr Hamilton's work boasts a foreword by no less an authority than the First Minister, who writes that "the Stone (or at least a stone!) now resides in Scotland", hinting at the ever-green old story that the Stone Edward got in 1296 was a fake, passed off on him by Scots as always tricky and resourceful in the face of otherwise overwhelming defeat.  As noted before in these columns, this idea overlooks the attempts of the Scots, once independence had been firmly reasserted after Bannockburn in 1314, to get the Stone back from England and their complete failure to produce the "real" Stone from wherever it had been concealed in 1296 (see No 664).  Probably however the myth has been given fresh currency by Andrew Greig's recent (and slightly disappointing) novel, Romanno Bridge (2008).  The discerning readers of Scots Law News are recommended to go instead to Mr Greig's other writings, notably the superb novels In Another Light (2004) and The Return of John MacNab (1996), and his splendidly titled and perceptive work on golf, Preferred Lies (2006), all of which have been much more enjoyed by your correspondent in recent months.

Scots Law News is grateful to Ian Hamilton's publishers, Birlinn Ltd, and their amiable chief, Hugh Andrew, for the opportunity to meet at last one of the great modern Scots, as well as many other delightful and interesting people, and looks forward to re-reading the magnum opus.  Film review to follow … perhaps.

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