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Lord Bracadale's opinion in Imperial Tobacco Ltd Petitioners [2010] CSOH 134 (issued on 30 September 2010) upholds the validity of the Scottish Parliament's legislation prohibiting the display of tobacco products at point of sale and the use of vending machines to sell tobacco products.  Along the way he makes a number of striking remarks on the correct approach to the review of Acts of the Scottish Parliament.

Most significant is Lord Bracadale's recognition of the Scotland Act 1998 as a "constitutional statute", the interpretation of which is to be generous and purposive, bearing in mind the constitutional values which the statute was meant to embody.  "The court," says Lord Bracadale, "should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable" (para 3).  In construing the scope of reservations of matters from the devolved competence of the Scottish Parliament, "it seems to me to follow from the approach of listing individual reserved matters that each of them should be given a narrow reading; otherwise the specific nature of the approach would not have been necessary" (para 18).  In order to determine whether or not sections 1 and 9 of the Tobacco & Primary Medical Services (Scotland) Act 2010 (summarised in the opening paragraph above) fell foul of the reservation of "the sale and supply of goods to consumers" in Schedule 5 section C7(a) of the Scotland Act, it was legitimate to examine the travaux preparatoire of the 2010 Act, including reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied the Bill and statements by Ministers during the relevant proceedings in the Scottish Parliament.  "That review of the background materials, the surrounding documents and the parliamentary debates," Lord Bracadale concluded, "points very strongly towards identifying the purpose of sections 1 and 9 of the 2010 Act as being to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term. That purpose would not relate to a reserved matter" (para 48).  He went on to reject a further argument that the provisions in question were beyond legislative competence as modifying a rule of Scots criminal law as it applied to reserved matters or as special to a reserved matter, there being no rule of Scots criminal law being "modified" by the 2010 Act. 

Finally, Lord Bracadale turned to an argument that the 2010 Act modified Article VI of the 1707 Acts of Union and was thus contrary to Schedule 1 para 4(2) of the Scotland Act, which prohibits such modification of Article VI so far as it relates to freedom of trade.   Article VI reads:

"That all parts of the United Kingdom forever from and after the Union shall have the same allowances, encouragements and drawbacks and be under the same prohibitions, restrictions and regulations of trade and lyable to the same customs and duties on import and export and that the allowances, encouragements and drawbacks, prohibitions, restrictions and regulations of trade and the customs and duties on import and export settled in England when the Union commences shall from and after the Union take place through the whole United Kingdom."

Following Lord Hope's approach in Lord Gray's Motion 2000 SC (HL) 46, Lord Bracadale sought to place Article VI in its historical context, for which he relied on T C Smout's History of the Scottish People 1560-1830 , T M Devine's The Scottish Nation, the Records of the Scottish Parliament website, and Adam Smith's Wealth of Nations.  His conclusion is that Article VI was about establishing freedom of trade in the common market created by the 1707 Union.  But the 2010 Act did not go against the existence of a common market in the United Kingdom:

"The prohibition on modification of article VI contained in para 1 of schedule 4 to the Scotland Act is in any event restricted to modification of article VI so far as it relates to freedom of trade. The review of the historical context of the Acts of Union, the ordinary meaning of the phrase "freedom of trade" and what was said by the Secretary of State in the parliamentary debates on the Scotland Act, all taken together, lead me to conclude that the prohibition on modification of article VI of the Acts of Union contained in para 1 of schedule 4 to the Scotland Act is restricted to interference with the common market created by the Union. Understood in this way, the prohibitions and restrictions introduced by sections 1 and 9 of the 2010 Act do not interfere with the common market created by article VI of the Acts of Union. I did not find consideration of the Directive 2001/37/EC to be of assistance. In any event, the removal of barriers contemplated by it leaves open the possibility of member states introducing, under certain conditions, such requirements as they consider necessary in order to guarantee the protection of the health of individuals" (para 80).

 

As seemed possible at the time of our last post on this subject back in August, the group of US Senators pursuing an inquiry into the Megrahi release sent representatives to Scotland in pursuit of evidence in late September 2010.  Whatever light the trip may have cast, there was certainly little sweetness in its immediate aftermath.

The representatives met Scottish Government officials on 16 September and also the Labour Party spokesperson Richard Baker MSP.  The officials' initial claim that their meeting had been "amicable" and a "helpful exchange" seemed to be contradicted later when the lead US Senator, Robert Menendez, was reported as saying that the initial prognosis that Megrahi had three months to live was made, not by a cancer specialist, but by the prison GP.  There were also claims of evidence that Megrahi had started chemotherapy in July 2009 (i.e. pre-release) that was not merely palliative but designed to prolong his life, thus exposing as a "lie" the Scottish Government position that his illness had become untreatable.  The representative reportedly said that "they (the officials) contradicted themselves repeatedly and made illogical statements/conclusions that were almost laughable if the circumstances weren't so serious." 

The Scottish Government response was pointed:

"The senator's staffer has got both these issues entirely wrong, and the senate committee is misinformed.

As has been stated many times, and was said several times at the meeting between Scottish Government officials and the staffer earlier this month, the advice to the justice secretary came from Dr Andrew Fraser, director of health and care of the Scottish Prison Service, and the prognosis was his.

It was Dr Fraser's responsibility to prepare the medical report for Mr MacAskill, and Dr Fraser who concluded that his clinical assessment was that a three-month prognosis was a reasonable estimate, drawing on the work of a range of specialists and other Scottish health service professionals involved in Megrahi's care from when he was first diagnosed with cancer in 2008."

 

 

The Daily Telegraph and the BBC published on 24 September 2010 leaked UK government lists of public bodies to be abolished or under review in the expected round of huge public expenditure cuts to be made in the autumn, the UK Supreme Court and the English Law Commission being amongst the group still up for review.

The lists appear to have been originated in mid to late August this year, so were already a month or so out-of-date by the time of their publication.  Scots Law News suspects that outright abolition is not on the cards for either body, but that both may be expected to do at least as much with less in future.

Your correspondent noted also the presence on the list of bodies under review of the Advisory Panel on Public Sector Information (APPSI), on which he has been Scottish Representative since 2005.  He is beginning to wonder if his membership of public bodies and aspirations to public service are good ideas, at least for the bodies concerned: so far, the Intellectual Property Advisory Committee and the Scottish Records Advisory Council are the ones to have bitten the dust.

 

 

Change in the Scottish judiciary following the re-establishment of the Scottish Courts Service under the headship of the Lord President was confirmed by the launch of their website on 20 September 2010.

The site is clearly informed by at least two things: the need for transparency in the age of freedom of information, and a desire to correct, as far as possible, public misperceptions of the judiciary and in particular the rationales and policies which underlie sentencing in criminal cases.

Scots Law News shares a general sense that this website is a Good Thing and a mark of progress in relations between the Scottish legal system and the rest of the world outside.  The test will be how well and regularly the site is maintained.  As the Scottish Courts website now illustrates all too well, a good start is good only for a very short time, and you have to move with your audience as it grows both more demanding and more sophisticated in the art of the possible.  But resources, ever more significant in the era of public austerity now upon us, will decide all in the end.

 

The death on 11 September 2010 of Lord Bingham of Cornhill, former Senior Law Lord and one of the architects of the still new UK Supreme Court, has been noted elsewhere in Edinburgh Law School's blawgs, but Scots Law News would wish to add a word or two of appreciation of a great judge and a fine man.

Your correspondent met Lord Bingham only twice but will always remember the first time in particular.  It was a dinner in a plush Westminster venue in the late 1990s at which the gathering, having fed and wined, was to discuss the future of the European Union.  Lord Bingham said little; but your correspondent foolishly allowed himself to be provoked into angry speech by the anti-European tone of many of the rather too self-satisfied and Anglo-centric other contributors around the table. 

That rant having had no discernible effect on the mood of the meeting, a post-prandial and despondent stroll in the direction of the St James' underground was interrupted by the sound of running feet behind; and there was Lord Bingham, empathetic and conversational while  properly avoiding anything European or difficult about the experience we had just shared.  We did however share the Tube to somewhere in west London, where his Lordship left me to continue my progress to a hotel by Heathrow from which I was due to depart for Edinburgh in the early morning.  A human moment for which your correspondent remains grateful; and one that to judge from obituaries here, here, and here was typical of the man.

 

 

Lord Woolman may have set a new record for the number of times the F-word has appeared in a civil case judgment in his opinion in McCormack v Hamilton Academical Football Club [2010] CSOH 124, issued on 1 September 2010.

Mr McCormack had been sacked for gross misconduct as assistant manager of the football club after a mere two months in post.  His claim was for wrongful dismissal.  One of the major aspects of the alleged misconduct was Mr McCormack's swearing and in particular his regular use of the F-word in public and in the relative privacy of the dressing-room.  Narrating the evidence, Lord Woolman finds himself forced to use the word also, no less than six times.  There were also a number of other incidents in which Mr McCormack's speech and conduct showed himself not inclined to tone it down a bit when in the presence of a member of the opposite gender (the club physiotherapist was female).

Nonetheless Lord Woolman comes to the conclusion that Mr McCormack was indeed wrongfully dismissed and puts the case out By Order for assessment of the damages to be awarded.  There is however no elaboration on the meaning and significance of the F-word and its derivatives such as we find in the English passing off and cybersquatting case French Connection Ltd v Sutton [2000] ETMR 341 (the case also responsible for your correspondent's only use of the F-word in print: see Contemporary Intellectual Property: Law and Policy chapter 17).

 

Brian Scott (45) and Ross Blaikie (31) were duly convicted in Jedburgh Sheriff Court on 10 September 2010 of fishing the Liddle Water near Newcastleton without a licence to do so having been previously obtained from the Environment Agency.  In the light of the information produced by our earlier post on the subject, this was not a surprising outcome.

But the result was nonetheless interesting, as Sheriff Kevin Drummond chose only to admonish Mr Scott and gave Mr Blaikie an absolute discharge – letting them both "off the hook", as The Scotsman put it in the fullest account of proceedings seen by Scots Law News.  mr Scott was admonished only because he had a previous conviction for poaching in 2001.

The report makes clear that there is a background of local contention.  The Environment Agency, it will be recalled, is in general a body with authority only in England but has powers over the fisheries in the River Esk system because that river flows through both England and Scotland.  The Liddle Water is part of the Esk system but actually defines the Anglo-Scottish border at the point where the two men were fishing.  It appears that in the past the Environment Agency had not made a practice of demanding licences for fishing on the Scottish side of the line but had begun to change its practice in about 2005.  This has been the subject of protest, and in effect the case of Messrs Scott and Blaikie was to test and highlight the position – in which it certainly succeeded.

Sheriff Drummond seems to have pointed the way to a compromise which might take the heat out of the situation, the Environment Agency's power to waive its licensing fees where they had adverse economic impacts in a rural area.  The hint seems to have been taken: on 21 September the BBC reported that the Environment Agency was "currently exploring the possibility of issuing a general licence with the fisheries' interests on the Scottish part of the Esk."

Our thanks to Mr James Duff, who has brought to our attention a judgment of Sheriff George Jamieson dated 5 August 2010, sitting in Dumfries, and holding Mr Duff's action of lawburrows against the Chief Constable of Dumfries and Galloway (in which the former represented himself) to be irrelevant when it was based upon claims of defamation made by the pursuer against the defender.

The case follows on from earlier decisions, one of which is noted here in Scots Law News.  But Sheriff Jamieson's decision is not based upon a view that lawburrows can only be taken out against threats of physical violence.  He concludes, following the opinion he had already expressed in footnote 73 of chapter 5 in his learned work on Summary Applications and Suspensions, that Stair, applying a liberal interpretive approach to the Lawburrows Act 1581, was to the opposite effect, and that Erskine's contrary view was based only on the fact that there was no direct authority or practice on the point.  Stair's position, also supported by Professor Walker in his Civil Remedies (1974), gains further weight from the much wider modern understanding of "assault" as going beyond the merely physical invasion of another person.  Sheriff Jamieson rejects an argument that when the opinions of two institutional writers conflict the court is bound by neither, preferring an approach of taking the view more consistent with modern understandings of social need.  While previous case law on lawburrows did not go so far, neither did it reject or even consider the possibility.

Sheriff Jamieson dismisses Mr Duff's action, however, on the basis that his pleadings referred only to possibly defamatory statements made by police officers some time in the past, with no grounds shown for apprehension that such statements would recur in the future.  He also upheld arguments about the limited nature of the Chief Constable's vicarious liability for the actions of his officers, and rejected human rights arguments that Mr Duff's actions should at least go to proof. 

Sheriff Jamieson's long and interesting note has not yet appeared on the Scottish Courts website.  It is to be hoped that it will soon do so.

Scots Law News is always interested by Anglo-Scottish cross-border issues (see previously here and here), but was especially fascinated by the latest episode concerning fishings on the River Esk, reported by the BBC on 29 August 2010.

The source of conflict seems to be the responsibility of the Environment Agency (a body that generally has no jurisdiction in Scotland) for the River Esk, which flows mainly but not entirely to the north of the Scotland-England border, and emerges into the Solway Firth on the Cumbrian side of the border.  The Agency interprets this as entitling it to regulate fishings on the entire river system and to require licences for those who would fish the waters for salmon or sea trout.

This is however disputed by those fishing the river in Scotland, and now the position is to be tested in Jedburgh Sheriff Court, where two men from Newcastleton are to be prosecuted for unlicensed rod-fishing on the Liddle Water (a tributary of the Esk).  Their defence will be to challenge the legitimacy of the Agency's regulations.  The case begins before Sheriff Kevin Drummond on 10 September.  We will be watching eagerly for further news.

The rivers on the border might be described as a p-Esk-y problem for Anglo-Scottish legal relations, since they have been causing issues over where Scotland ends and England begins (or vice versa) for centuries.  See this writer's learned article in (1991) 22 Law Librarian 85-93 for thirteenth-century fishing disputes on the Tweed, and the following cases, conveniently summarised by the late great Professor W A Wilson in his Introductory Essays on Scots Law (2nd edn, 1984), p.35:  Duke of Roxburgh v Earls of Home and Tankerville (1768) Mor 14272; 2 Paton 358 (Tweed fishings);  Coutts v Blake (1775) Mor 7375 (island in the Tweed); Annandale and Eskdale DC v North West Water Authority 1978 SC 187 (the fluctuating Eden and the Solway Firth).

Only with the greatest hesitancy does Scots Law News enter into the discussion of Lord Mackay of Clashfern's support for the Scottish Bible Society's leaflet on "The Bible in Scots Law" and its statement that the Bible is a "foundational source book for Scotland's legal system".

The text of the leaflet has been helpfully made available on the Internet by our blogging colleague, the Lallands Peat Worrier.  From a historical point of view, there can be no doubt that the Bible has played a role in the shaping of Western law in general, in particular canon law, and that from there it has gone on to be influential in the development of other legal systems, including Scots law.  The pamphlet is right to say that the "institutional writers [were] informed by Roman and biblical law for civil law and by biblical law for criminal law".  Who can forget Lord Cooper's famous characterisation of Scots law as expounded by Stair? – "an original amalgam of Roman Law, Feudal Law  and native customary law, systematised by resort to the law of nature and the Bible, and illuminated by many flashes of ideal metaphysic."

Yet there are some puzzles about the pamphlet.  It gives a long list of scriptural citations to illustrate themes of relevance to justice in 21st-century Scotland (exhaustively and critically analysed, incidentally, by the Lallands Peat Worrier), but there is a heavy preponderance of Old Testament over New.  Nor is there any mention of surely the most famous of all modern judicial references to the Bible (of which your correspondent was reminded by reading Elspeth Reid's account of the case in the recently published Scots Law Tales), the church-going Lord Atkin's deployment of the Parable of the Good Samaritan (Luke 10:29-37 and, note, New Testament) as a prelude to his definition of the duty of care in negligence in Donoghue v Stevenson.

Perhaps, however, this omission is because Lord Atkin was careful to avoid a literal reading of the command to love his neighbour in determining the legal test he sought to formulate.  He could well see the difficulties which even such a seemingly attractive proposition might make if transformed into a legal rule.  And surely this is the right approach: to see in the Bible a potential sources of principles for the governance of human relations which has undoubtedly had (and probably continues to have, directly or indirectly) considerable influence in our society, but one that goes alongside many others, probably increasingly so in our multi-cultural and sceptical world, and must be treated with circumspection, critical thought and awareness that much of its content is informed by the ideas and values of times completely different from our own.