Not 44 Scotland Street: strife over a New Town oasis

The Scotsman for 24 June 2009 reported a New Town row about a back garden in Fettes Row that has already been through the Lands Tribunal and looks likely to end up in the Court of Session.

The story seems to go like this.  A former townhouse in Fettes Row was divided into flats in the mid-1940s.  In 1967 the owner of the basement flat succeeded in establishing before the Lands Tribunal that she had rights to prevent use of the house back garden as a drying-green by the other flat proprietors, although they had a right of common interest to access the garden by way of a door at the foot of the back stair.  Over the last 40 years the basement flat proprietor (the same person throughout all these years) has converted the space at the back into what she terms a "little oasis in the New Town", apparently spending thousands of pounds in the process.  She has also succeeded in preventing her neighbours accessing the area.

The latest development is another case in the Lands Tribunal, where the basement flat proprietor has succeeded in having the neighbours' right of access overturned.  It appears also that developers are keen to build mews houses on the ground, as they have done in neighbouring back greens, and that some of the other flat proprietors would like to do a deal with the developers.  So it is not simply the case that the neighbours need somewhere to hang out their washing. 

It all sounds like a situation the resolution of which would mystify Bertie (aged 6) and might even challenge the combined adult wisdom and experience of Domenica Macdonald, Angus Lordie and Cyril, all near by in Scotland Street.  Perhaps the mediation of Merchiston's finest philosopher queen, Isabel Dalhousie, is what's needed (although the danger might be that she would just turn the green over to Brother Fox).  Coffee at Big Lou's anyone?

Naked Rambler returns to the streets

The latest appearance of Steve Gough the Naked Rambler was in Perth Sheriff Court (at last!) on 23 June 2009.

Our information comes from the Perthshire Advertiser, which describes Mr Gough as a "notorious exhibitionist" – perhaps a little bit harsh on the second bit of the description.  It appears that Gough was arrested a few days before his court appearance while walking unclad along Perth's Edinburgh Road.  Since our last news of the great man was of his incarceration in Perth prison, we can only assume that he had been released en deshabille from durance vile; but we have no information on how long this walk to freedom – or should that be unfreedom? – may have been.

 The Perthshire Advertiser reports that, also as usual, Gough refused to dress for court and also says that "Gough's agent William Somerville grew exasperated at Gough's lack of cooperation and washed his hands of the case."  Sheriff Michael Fletcher, last heard of here dealing with intrusions on Ann Gloag's nearby Kinfauns estate, fixed an intermediate diet for 2 July and the trial for the 16th.  We may then learn whether Mr Gough's new legal arguments, heralded in our last post on this subject, will persuade the court to take a different approach to his case.  Regular readers will recall our assessment of the pre-eminence of Perth Sheriff Court in matters of criminal jurisprudence.

There are one or two other interesting blogs following the fortunes of the Naked Rambler, for example here.

Lord Davidson

Scots Law News is once again saddened to have to report the loss of a leading figure in Scots law.  Lord Davidson died on 18 June 2009 at the age of 80.

Kemp Davidson was one of the leading advocates of his generation and held all of the honours his choice of career could offer – QC 1969, Procurator to the General Assembly of the Church of Scotland 1972-1983, Keeper of the Advocates Library 1972-1976, Vice-Dean of Faculty 1977, and finally Dean in 1979.  He was appointed to the bench in 1983, and became an impressive Chairman of the Scottish Law Commission from 1988 to 1996.

For much of the last 20 years Lord Davidson lived with the increasing burden of Parkinson's disease, and all who knew him during these years could not fail to be impressed by the courage and dignity with which he tackled his illness.  He was a delightful, courteous and learned man.

Sergeant Eros caught flashing… (His strobe light, of course)

Further to our recent note that stripper Stuart Kennedy (better known to our regular readers as "Sergeant Eros") was on trial (again) for impersonating a police officer news came through on 23 June 2009 that Mr Kennedy was convicted in Peterhead sheriff court.

Sheriff Marysia Lewis found Kennedy guilty of impersonating a police officer after a three-day trial where drivers James Buchan and off-duty fireman Jamie Lawrie alleged that Kennedy had used a flashing strobe light to pull over motorists on the Aberdeen to Peterhead road.

After the trial Chief Inspector Gerry Cronin, of Grampian Police, said,

"This has never been about preventing an entertainer from performing. It's about public safety and our duty to protect the public from the very real dangers posed by fake police officers. Someone in a car giving the impression that the vehicle is a police vehicle could cause a serious accident and loss of life."

Sentence has been deferred until 16th July.

Make Mine a Builders

Between October 2005 and September 2006, Chartered Brands Ltd and Elmwood Design Ltd to invent and sell a brand of tea to be marketed under the name "Make Mine a Builders". Relations broke down and Chartered Brands sued Elmwood alleging that Elmwood had marketed a tea based on the services provided by Chartered Brands. The case was decided by Sheriff Crowe at Edinburgh sheriff court on 15 May 2009 and contains detailed argument on the law of recompense.

The case was fully argued, some 52 cases referred to the sheriff (one, Gray v. Johnston 1928 S.C. 659, being described by Sheriff Crowe as a case where "the facts read more like the plot of a Thomas Hardy novel" (para 131)), as well as Institutional writings, and academic commentaries from the new edition of Gloag and Henderson, Professor McBryde, the late Professor Birks, and Professor Evans Jones (including his article Causes of Action & Remedies in Unjustified Enrichment; (2007) 11 Edinburgh Law Review, 105).

The case was heard on a plea to the relevancy and the extensive argument left Sheriff Crowe, like many that have dipped their toes into the waters of unjustified enrichment, to say

"I too have found this area of law a complex one. Counsel for the Defenders quoted authority extensively and comprehensively but as Lord Roger indicated in Shilliday v. Smith at page 727A:-

"Discussions of unjustified enrichment are bedevilled by language which is often almost impenetrable."

There are mixed messages too as to whether the law in this context has developed in recent years or simply has been more clearly defined." (para 120)

And, in relation to the use of Latin, notes

"A claim for recompense only arises in specific circumstances and is very much a last recourse when other perhaps more direct and conventional means are not open to an aggrieved party. Recompense in this context has variously been described as:-

"the brocard nemo debet ex alieno damno lucrari" -per Lord Ardwall in Gilchrist v. Whyte at page 992,

"the old brocard nemo debet locupletari aliena jactura"-per Lord President Dunedin in Edinburgh & District Tramways v. Courtenay at page 105 and

"the general brocard nemo debit (sic) loculetari aliena jactura"- per Lord Murray in Gray v. Johnston at page 664.

Fortunately Traynor at page 377 confirms these various brocards mean the same thing."

The sheriff allowed a proof before answer. We await developments with interest.

Offences (Aggravation by Prejudice) (Scotland) Bill

Scottish Green party leader Patrick Harvie's member's bill, the Offences (Aggravation by Prejudice) (Scotland) Bill (see previously here) passed its final stage in the Scottish Parliament on 3rd June 2009 with all party support.

The bill provides that where it is established that crimes motivated by prejudice relating to disability, sexual orientation and transgender status this may be treated as an aggravating factor to be taken into account in sentencing. On passage of the bill Patrick Harvie said,

"The Parliament has today spoken with one voice, and this is a day all Scots can be proud of. At last, our courts will be required to hand down sentences for hate crimes against LGBT and disabled Scots that reflect the true nature of these crimes, just as they already can for offences motivated by racial or religious hatred. This legislation is a small but significant step in the right direction, but I personally will never be satisfied until these abhorrent crimes are a thing of the past altogether.

"I would also like to thank all those who have helped this Bill get onto the statute books, including those brave victims who have been prepared to come forward as well as a wide range of voluntary organisations, the police, and Scottish Ministers."


Judiciary and Courts (Scotland) At 2008

From June 1, 2009 much of the Judiciary and Courts (Scotland) Act 2008 came into force.

A new statutory guarantee of "continuing judicial independence" is provided for in section 1 of that Act (which Scots Law news noted did not capture what judicial independence was necessarily about in an earlier entry) is among the provisions now in force. This guarantee provides

"(1) The following persons must uphold the continued independence of the judiciary—

(a) the First Minister,

(b) the Lord Advocate,

(c) the Scottish Ministers,

(d) members of the Scottish Parliament, and

(e) all other persons with responsibility for matters relating to—

(i) the judiciary, or

(ii) the administration of justice,

where that responsibility is to be discharged only in or as regards Scotland.

(2) In particular, the First Minister, the Lord Advocate and the Scottish Ministers—

(a) must not seek to influence particular judicial decisions through any special access to the judiciary, and

(b) must have regard to the need for the judiciary to have the support necessary to enable them to carry out their functions."

What section 1 (1) actually means for a standard backbench MSP given the express duties imposed on the Scottish Ministers opens up some nice questions of statutory interpretation.

The principal part of the 2008 Act brought into force relates to judicial appointments. The Judicial Appointments Board for Scotland, which previously existed as an administrative advisory body, is now placed on a statutory footing. The rules for membership of the Board are set out in Schedule 1 to the Act, confirming that the Board comprises an equal number of lay and legal members (the legal members comprising a judge of the Court of Session, a sheriff principal, a sheriff, a solicitor, and an advocate) and is chaired by a lay member. The lay members cannot be elected politicians or civil servants. The Board has power to make recommendations for appointments to

"(a) the office of judge of the Court of Session,

(b) the office of Chairman of the Scottish Land Court,

(c) the office of temporary judge …,

(d) the office of sheriff principal,

(e) the office of sheriff,

(f) the office of part-time sheriff".

Where Scottish Ministers have the power to appoint a judge (as under s 95 of the Scotland Act 1998) the minister may only appoint someone recommended by the Board. If the minister rejects the Board's recommendation then the minister must notify the Board of the reasons for rejection (section 11 of the 2008 Act).

The placing of the Board on a statutory footing gives added weight to criteria applied by the Board. As an overriding criterion the Board must select an individual "solely on merit" (s 12 of the 2008 Act) and only if the Board is satisfied the individual is of good character. The legal and judicial members of the Board are charged with assessing the "knowledge of the law, or skills and competence in the interpretation and application of the law." (s 13 of the 2008 Act). The Board is also to take into account

"the need to encourage diversity in the range of individuals available for selection to be recommended for appointment to a judicial office." (s 14)

although this is subject to the general requirement that appointments are to be made on merit.

Under s 95 of the Scotland Act 1998 the Prime Minister is to recommend to the Queen the person to be appointed the Lord president or Lord Justice Clerk, but may only act on the nomination of the First Minister (who is to consult the holder of the other office). Schedule 2 to the 2008 Act provides that the nomination by the First Minister remains at his or her discretion, but the nomination cannot be made until the First Minister has taken into account the views of a panel comprising the chairman of the Judicial Appointments Board, a lay member of the Board nominated by the chair, and 2 judges (where the vacancy is for the Lord Justice Clerk one of whom is to be the Lord President).

Other parts of the Act have come into force including section 21 (which provides that a solicitor advocate with right of audience in only the Court of Session or only the High Court of the Justiciary may be appointed as a Court of Session judge); section 2 (2)(b) and (c) (which provides that the Lord President is responsible for laying the views of Scottish judges before the Scottish Parliament); and sections 4 to 8 (which replace the Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 (on which see here, here, and here)) which provides for the Lord Justice Clerk to assume the functions of Lord President or the senior Inner House judge to assume the functions of the Lord Justice Clerk if either Lord President or Lord Justice Clerk is incapacitated or the post vacant.

Sectionjs 4 to 8 retain the requirement that where the Lord President or Lord Justice Clerk is incapacitated (defined in section 8 as being "unable by reason of ill health to carry out the functions of the office concerned") the relevant judge is "to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that" this is the case (which declaration must be signed by the other senior judge). Also retained is the rule that once such a declaration has been made the relevant judge "is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by a majority of the total
number of judges of the Inner House declaring that they are satisfied that the [relevant judge] is no longer incapacitated." Again that declaration must be signed by the other senior judge before it has effect. This means, for example, that if the Lord President is declared to have been incapacitated the Lord Justice Clerk must actively assent to the Lord President's resumption of functions. What is to happen if a Lord Justice Clerk particularly enjoys acting as Lord President and is not keen to sign the declaration is not addressed, but while such judicial coups might make for good examination questions they are unthinkable in practice.

The 2008 Act extends the Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 to cover the situation where Lord President or Lord Justice Clerk is suspended under section 36 of the 2008 Act, pending an investigation to determine whether the judge is "unfit to hold the office by reason of inability,
neglect of duty or misbehaviour". As yet, this section is not in force. This lacuna would presumably be remedied promptly in the unlikely event that circumstances required.

Time-bar on slopping-out actions against Scottish Ministers

On 18 June 2009 the Convention Rights Proceedings (Amendment) (Scotland) Bill was passed nem con under the Emergency Bill procedure of the Scottish Parliament, the whole process taking less than a day.

The purpose of the Bill was to reverse the decision in Somerville v Scottish Ministers 2008 SC (HL) 45, that the Scotland Act 1998, unlike the Human Rights Act 1998, contained no time-bar restricting the availability of claims against Scottish ministers for human rights infringements; the infringement in question in Somerville being the practice of prisoners in Scotland having to “slop-out” in their cells.  For more background on this, see our previous entry here.    It is thought that the legislation will save the Scottish Government £50 million.

Apart from the use of the Emergency Bill procedure (the only previous example Scots Law News can remember is the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, the Parliament's very first piece of legislation, which ended up being judicially approved by the Privy Council after a couple of years' challenge in the courts), the Bill is also notable for amending the Scotland Act itself (allowed by the statutory instrument mentioned in our previous entry on this topic.)

Prisoners found predictably few defenders amongst the MSPs contributing to the debate on the Bill, but in fairness the same was true for the practice of slopping out.  Bill Aitken, Convener of the Justice Committee, did allow himself to comment that the best way for prisoners to avoid slopping out was not to commit offences in the first place (Official Report, col 18525; offenders might say that it is better still not to get caught).

Cabinet Secretary for Justice Kenny MacAskill took the opportunity to have a swipe at the lengthy arguments in the judicial review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (which came into force on 17 June, the day before the debate being commented upon here):

“We are conscious that, despite the fact that this Parliament united to bring in compensation in relation to pleural plaques, the Government is being pursued through the courts by those who represent the insurance companies. However, in that regard, I should say that even the first orders of the cases of those who are pursuing us appear to be taking considerably longer than the entire parliamentary process took. That perhaps explains why we look forward with interest to Lord Gill's report. Something is manifestly wrong if the parliamentary process is significantly quicker than the first order in a judicial review.” (Official Report, col 18610)

The reference is to the long-awaited report of the Gill review of civil justice, which Scots Law News thought originally was going to come out in March, then, later, in June.  The tale is now that it will appear in July, just in time to take to the beach.

Scottish legislation’s coming home

The Interpretation and Legislative Reform (Scotland) Bill, introduced in the Scottish Parliament on 16 June 2009, promises rather more than it seems to deliver. 

As the Explanatory Memorandum makes clear, this is a highly technical Bill, broadly restating in one primary legislative source rules for Acts of the Scottish Parliament that have hitherto been found in UK statutory instruments.  A homecoming for Scottish legislation, if you like.  It’s about such things as commencement, the effects of repeals, the meaning of certain standard phrases like “enactment”, “civil partner” and “devolved Scottish public authority”.  We’re told that words in the singular include the plural, and vice-versa; but alas! – male does not embrace the female, or vice-versa.  We leave that sort of thing to the national bard.  Expressions of time (such as auld lang syne) are to be read as references to Greenwich mean time subject to section 3 of the Summer Time Act 1972 (you will have to check that one yourself).  But nothing about whether or not interpretation is to be purposive or literal; no attempt at a modern restatement of the Golden Rule.  The judges (and others) can relax.

Professor John Blackie of Strathclyde, who drew our attention to the Bill, is interested by the provision that references to pre-1707 Acts of the Parliaments of Scotland are to be read as referring—

“(a) in the case of old Scots Acts included in any revised edition of the statutes printed by authority, to that edition,
(b) in the case of old Scots Acts not so included but included in the edition prepared under the direction of the Record Commission, to that edition,
(c) in any other case, to the old Scots Acts printed by the Queen’s Printer of Acts of Parliament, or under the superintendence or authority of Her Majesty’s Stationery Office.”

This means that the St Andrews University Records of the Parliaments of Scotland (RPS) project, which provides online the authentic texts of what the pre-1707 Parliament enacted (often different from the printed versions mentioned above in the draft Bill), are not to be referred to.  As Professor Blackie says, “we have the result in law that a version different from that enacted is the version that is the law!”

Calman Commission reports

The Commission on Scottish Devolution set up by the Unionist parties in the Scottish Parliament and chaired by Sir Kenneth Calman published its final report on 15 June 2009.

The report, entitled Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, concentrates most on fiscal matters.  Having in its first report ruled out full fiscal autonomy for Scotland, the Commission nonetheless recommends that part of the budget of the Scottish Parliament should be found from devolved taxation under its control rather than from grant from the Westminster Parliament.  The starting point is income tax based on a special Scottish rate with the UK tax rate in Scotland reduced by 10 pence in the pound and the UK block grant to Scotland also reduced accordingly.  The Barnett formula for determining the block grant’s amount would be otherwise unchanged.  The Scottish Parliament would have stronger borrowing powers and could also legislate to introduce new taxes, while some existing taxes, e.g. the Stamp Duty Land Tax and Air Passenger Duty, would be devolved to Scotland as well.

How well all this will go down at the UK level, where it will be decided, remains to be seen.  UK Tories, even under David Cameron, are unlikely to see new tax powers north of the border as attractive either ideologically or from a pragmatic vote-winning perspective, whether in the UK as a whole or in Scotland.  They may also see a deepening of the divisions in the union of the UK rather than a strengthening.  Scots Law News also has its doubts about Labourites’ buy-in for this sort of thing.  But we have seen headlines suggesting that the UK Government will put all this through Westminster in the next 10 months, i.e. before the next UK General Election.  Shades of the late 1970s begin to pass before our eyes.

Other things in the report make sense, especially measures that will make the UK and the Scottish Governments and Parliaments work more closely together (but the Welsh and Northern Ireland Assemblies must also be involved here).  There are some interesting suggestions about matters that should now be devolved: administration of elections to the Scottish Parliament, regulation of airguns, the speed limit and drink-driving limits.  Other matters should be dealt with at a UK level: there should, for example, be a unified regime on charities law for all purposes.  (But which of the existing regimes should be preferred is not discussed.)  Unified rules on insolvency are also advocated.  Each of these suggestions is likely to attract controversy.

Finally, there seems to be nothing in the report on the role of the Lord Advocate, although as regular readers may recall questions on that subject were raised by the judiciary during the Commission’s evidence-gathering process.  A subject for another day, no doubt. 

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