Jonathan Mitchell QC

Standing in public law cases

JM — Sun, 13 Jun 2010 13:40:03 +0000

This is a written version of my talk given to the Scottish Public Law Group annual conference on 7 June 2010. There is widespread agreement that the Scottish law of title and interest to sue in public law matters is over-restrictive and in need of reform. I wish to put, and answer, three questions as to this area of law:

How did things get into this state?
What is hidden underneath the debris?
How can it get cleaned up?

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Legal aid in the Upper Tribunal: update on what’s happening

JM — Tue, 01 Jun 2010 08:35:17 +0000

At long last, the Scottish Legal Aid Board and the Scottish Government have promulgated regulations for legal aid in the unified tribunal system. There's plenty of evidence that legal representation makes a substantial difference to success rates in the tribunals, so this is welcome, although the effect of the regulations is patchy. This post gives a brief description of the proposed scheme and its background. There will be fuller discussion at this conference on 14 June.

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Representing victims of trafficking in Scotland

JM — Tue, 25 May 2010 23:19:13 +0000

As the EMLC said in evidence to the Scottish Parliament inquiry on 18 May "we would see it as essential for the individual to be able to access expert legal advice and assistance from a trusted source with an understanding of the issues". This conference, organised by Scottish Refugee Council together with the Murray Stable, is designed to help meet that need.

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Forthcoming conference: Scottish Public Law Group

JM — Tue, 25 May 2010 23:09:59 +0000

Scottish Public Law Group conference on 7 June — title and interest to sue in public law — related reforms — intervention in the public interest

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The Court of Session meets article 6 of the ECHR

JM — Mon, 22 Feb 2010 20:55:17 +0000

In what seems to be an odd coincidence, there were two apparently unrelated developments this month concerning the systemic problem of delay in civil appeals in the Inner House: one in Edinburgh, one in Strasbourg where the European Court of Human Rights considered the practice and procedure of the Court of Session.

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Success rate in judicial review petitions in Scotland

JM — Tue, 09 Feb 2010 00:10:40 +0000

This post quotes in full a response by the Office of the Advocate General to a recent freedom of information request by Alan Caskie, an advocate specialising in judicial review and particularly asylum and immigration. This response shows that the success rate for petitions in this area is high, and rising year by year. Awards of expenses are an acid test of success; there may be many reasons why no award is asked for or made, but if one is asked for and made it is pretty clear that the paying party lost .

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So last year

JM — Mon, 01 Feb 2010 00:20:56 +0000

Answers to last month's quiz below. Nobody got more than one question right, so rather than embarrass my loyal readership I am awarding myself the prize in terms of Rule 5. 1. Which published Court of Session opinion was removed from the Scotcourts website at the request of one party because its contents were said to be commercially confidential? Hat-tip to Douglas Macgregor of Brodies for this one, and also for supplying some of the background. The case is BSA International v Irvine 2009 CSOH 77, an opinion of Lord Glennie's which discusses the duties of expert witnesses and also describes a potentially significant distinction between Scots and English law as to legal professional privilege. Douglas says that, on enquiring of Scottish Courts why the opinion had been removed, he was told " On occasion opinions can be withdrawn if it is brought to the Court’s attention that it contains confidential information, which could possibly cause prejudice to a party. The opinion has now been redacted by his Lordship...". It seems, though, that nobody told BAILII, which continued to publish the opinion here. Sometime in January 2010 a copy went back on Scotcourts here, but I haven't looked to see what the differences are. Douglas, however, points out that the version published at 2009 SLT 1180 seems to be the original version as on BAILII. The interest of this, other than the obvious point that the failure to withdraw the opinion effectively shows the difficulty in concealing information once published on the internet, is that it puts into sharp focus the practice of the Scottish courts in publishing personally confidential, if not commercially sensitive, information relative to litigants and witnesses; see my earlier article on privacy in case reporting. See on this now the Supreme Court's decision last week in Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1. At the Four Jurisdictions Conference which I've been attending this weekend in Ireland, Janys Scott QC gave an interesting paper on this issue which I hope to see published on the Murray Stable News and Articles site. More follows…

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Review of the year

JM — Thu, 17 Dec 2009 14:40:30 +0000

Well, I’m knocking off until the New Year. For those among my loyal readers who can’t keep away from the law over the break, I offer a prize of a bottle of the Faculty of Advocates finest Reading Room Claret to the best set of answers to this quiz on outré legal events of the [...]

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Judicial review of the Upper Tribunal

JM — Mon, 14 Dec 2009 23:44:36 +0000

Statutory provisions seeking to oust the jurisdiction of the courts have a long and inglorious history. Their desired object, to exclude any form of review by an independent court, is practically impossible to achieve. Some years ago, someone thought up a new wheeze: simply describe the body which it is sought to protect as a 'superior court of record' and then assert loudly that the nature of such a court was that it could not be judicially reviewed; all rather reminiscent of the old South African line that Parliament could be declared a court so as to allow a bare majority to change the constitution (Minister of the Interior v Harris 1952 (4) SA 769). This phrase has, since the Leggatt Report, become fashionable with recently-created tribunals. Examples include the Special Immigration Appeals Commission and the Upper Tribunal, both of which are now declared to be such a court; the latter is becoming an increasingly important, if overlooked, part of the judicial firmament. Never mind that 'the precise legal significance of this expression is not entirely clear, even in England, and possibly not at all in Scotland'; indeed, as noted below, it has 'no recognised meaning in Scotland'. The simple argument was that superior courts of record could not be subject to judicial review, because they couldn't be. In the recent English case of Cart & Ors, R (on the application of) v The Upper Tribunal & Ors [2009] EWHC 3052 (Admin), this argument was run by Government and rejected by the court. [More]

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Rights to environmental information

JM — Tue, 10 Nov 2009 01:30:57 +0000

At the talk I gave on this subject to the conference on environmental justice organised by the Environmental Law Centre last Monday, I promised to post a synopsis of the issues discussed, and the handouts, here.

The background

There has since 2005 been a general right to freedom of information held by or on behalf of public authorities in the United Kingdom. The right to access to environmental information, however, long predates this, going back to Directive 90/313/EEC and its implementing regulations; although the scheme now in force, Directive 2003/4/EEC and its implementing regulations, the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 are tighter ((Following the Aarhus Convention of 1998.)), the basic scheme has been in place since 1992. Nevertheless, this scheme has attracted far less attention than the general scheme of the two Freedom of Information Acts, the UK Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002, which only came into force thirteen years later.

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