26 September 2012

Baccymongers, bankers & the Supremes...

Last week, I took a critical look at the evidence supporting the claim that the European Court of Human Rights has some sort of "grudge" against the United Kingdom, and is excessively keen on "intervening" in our political affairs. In the event, the proof proved even more threadbare than you might expect. Even if we factor in the 97% of cases against the UK which the Court rejects as inadmissible, of the remaining 3% of cases, the UK Government loses the fifth-lowest percentage of cases, only trailing behind Denmark, Sweden, Andorra and the Netherlands.

Back in Scotland, a similar idea has recently been gaining currency in some nationalist circles, with the First Minister and the Cabinet Secretary for Justice implicated art and part.  The United Kingdom Supreme Court, it is said, is taking an unhealthy interested in Scotland, deciding too many Scottish cases, and in general, are sticking their Lordships' collective nebs where those nebs aren't wanted.

I looked with interest, therefore, at the Supreme Court's planned programme of sittings for their Michaelmas term, running from the first of October until the 21st of December. Running an eye down the roll of hearings, the Supreme Court intends to hear six Scottish cases out of the twenty three to be heard (I've excluded Judicial Committee of the Privy Council cases from this total, of which there are twelve, including appeals from Jamaica, Trinidad and Tobago, the Bahamas, the British Virgin Islands, and Mauritius.) Just over quarter of the cases being examined in the remaining part of 2012 are Scottish.

To take a very crude basis of comparison, the UK Supreme Court spends more time on Scottish controversies than a simple per capita Scottish contribution might suggest. 

But is Michaelmas 2012 representative of the Court's work in general? Is this is a particularly active period of review? Since 2009, Scottish judgments have made up just 17.2% of all judgments handed down.  Even if we assume (probably erroneously) that the Court manages to reach conclusions in all of its Michaelmas term cases by the end of December, we're talking about the number of Scottish decisions being issued increasing by - at most - a smidgeon. 

Since it got going in the October of 2009, the Court has entertained just 37 Scottish cases.  Much of the controversy surrounding the institution has concerned appeals from the High Court of Justiciary in criminal cases, albeit primarily on the grounds of fundamental rights, rather than the definition of crime.  Of the total across the Court's four (incomplete) years of operation, criminal appeals has represented a goodly (but minority) proportion of the UK Court's work.

Equally importantly, much of the rhetoric around the UK Court's interventions in Scottish criminal cases has implied meddlesome judicial mischief.  It is pertinent to ask, who invited the UK Court to decide their cases? It would, for instance, be a bit rich to slam an institution for deciding cases which a member of the Scottish Government - its law officers - actually referred to the Justices for a decision. The answer is: it's pretty eksie peeksie between accused or convicted persons, and appeals and references lodged by the Lord Advocate and prosecutors.

To shift from the quantitative to the qualitative, what will Lords Hope, Reed and their English and Northern Irish colleagues be looking at this term, and what, if any particularly incendiary cases can we expect to be argued? First up, on the 3rd of October, an appeal from the Court of Session in Morris v. Rae, an action for damages in breach of warrandice, when buying property. Towards the end of the month, another bench will convene to hear RM (AP) v. the Scottish Ministers, seeking judicially to review of the failure of Scottish Ministers:

"... to draft and lay regulations under sections 268(11) and (12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 before the Scottish Parliament".

Into November, the topic changes from those detained in state hospitals to allegations of assault made against officers from Strathclyde Police in 2004. In Ruddy (AP) v. Chief Constable Strathclyde, the pursuer sought £10,000 in damages, and argued his rights under Article 3 of the European Convention on Human Rights had been infringed. 

It is the hearing of the 12th of November which promises to be the term's most political controversial case. Back in February this year, Lord President Hamilton, and Lords Reed and Brodie rejected Imperial Tobacco's submissions that Holyrood's Tobacco and Primary Medical Services (Scotland) Act 2010 - which banned the sale of tobacco products using automated vending machines and prohibited tobacco displays - was outside the parliament's legislative competence. The tobacco-merchants attacked on a range of legal fronts, including arguments that...

  1. the provisions "relate to" the reserved matter of "regulation of the sale and supply of goods to consumers, within the meaning of Schedule 5, Section C7 of the Scotland Act.
  2. that they "make modifications of Scots criminal law as it applies to a reserved matter, namely regulation of the sale and supply of goods to consumers, and are therefore to be treated as relating to a reserved matter, by virtue of section 29(4); and even that:
  3. the vending machine provisions modify article 6 of the Union with England Act 1707 so far as it relates to freedom of trade, and are therefore outwith Holyrood's powers.

The Inner House rejected Imperial's arguments on all points, but it remains to be seen how the UK Supreme Court will deal with it, in extensive hearings pencilled in to last four days. Significantly, as the Court's newest Scottish justice, Lord Reed, sat on the Court of Session bench appealed against, Lord Hope will be the only justice trained in Scots law sitting on the five judge bench, which will instead include Lords Walker, Kerr, Sumption and the Court's only female Justice, Lady Hale.

I'm a bit perplexed by Kinloch (AP) v. Her Majesty's Advocate, the solitary criminal case on the Court's docket this termThe High Court of Justiciary's judgment seems to be alluding me. Answers on the proverbial postcard, anyone in the know.  Good news! As I've summarised in a new post, I've been able to get little more information about what is at issue in Kinloch, and an explanation for why a written judgment alluded me. More details, here.

Finally for Michaelmas, the Court will be looking at Lloyds TSB Foundation for Scotland v. Lloyds Banking Group LPCLitigation prompted in great part by the banking crash, the Foundation is pressing Lloyds to pay out a whopping £3,500,000, to be disbursed to charitable causes.  The bank, by contrast, is keen to keep its lucre, initially cutting and intending to eliminate its contribution towards the Foundation.  The BBC had this pithy sketch of the issues at stake late last year.  The case has already enjoyed something of a chequered judicial career. At first instance, Lord Glennie favoured the bank's argument. On appeal, the Lord President of the Court of Session preferred the Foundation's claims, and overturned Glennie's judgment.  It remains to be seen what the Supreme Court will make of it all - two days of hearings are pencilled in, for the stub end of November.


  1. The High Court of Justiciary's judgment seems to be alluding me. Answers on the proverbial postcard, anyone in the know.

    Eluding you I think!!!

  2. Scottish civil appeals to the supreme court don't in general require leave to appeal, while English do. In English appeals, only about 25% are granted leave, of which about 40% are successful. So one might expect there to be more Scottish civil appeals proportionately (although a few years ago there were actually less), but what is striking is that the success rate is not, as the English comparison would suggest, around 10%; I think it has been around 75% in recent years. That is in spite of the fact that many of the minority of failures are hopeless appeals that should never have been brought (e.g. most recently Tullochgribbans Mains in July).

    Behind this is a widespread perception at the Bar that the approach of the Supreme Court is so different to that of the Court of Session that an appeal is often going to be worth a shot. When the Supreme Court was instituted, there were suggestions that a leave requirement be introduced; Lord Hope was vigorously against this, but has now changed his mind, because he says of the hopeless class of case. So it yet may be.

    Back in the 1950-60s, there were major issues as to the difference in approach of the two courts (see Stott's diaries). Somebody should write this up for modern times. As a first generality I'd suggest the Court of Session is an 'it's aye been' court, while the Supreme Court is a moderniser- see e.g. Eba and Axa last year, the two most important Scots public law cases this century.

  3. Advocate,

    Thanks for the comment: interesting stuff. As you say, there does seem to be a perception that taking the case to London is worth the punt: a perception often rewarded by a more favourable judgment. That drift may also become more significant, you might think, now that Holyrood arguably has the power to cut civil appeals to London...

  4. There is also the matter of the requirement in the Scotland Act 2012 for a review after three years of that Act's provisions on the criminal jurisdiction of the UK Supreme Court. That review is to include examination of whether cases should be certified by the High Court before they are allowed to proceed to the UKSC, as is the situation currently with cases coming to that court from England & Wales. You might expect that to cut the numbers a bit: and it is interesting that Lord Hope might be more supportive of such an idea than he has appeared to be at some points in this debate. Of course, I hope it will be something of a dead letter by then!

  5. Am Firinn,

    A pertinent reminder that I'm not yet on top of the new provisions in the 2012 Act. *rummages around in the digital stoor for a copy*

  6. I wish that the "devolution jurisdiction" had been left with the Judicial Committee of the PC.

  7. It has produced (presumably rather unexpected) outcomes, to whit, the bench due to assemble to hear Imperial Tobacco is a case in point. One needn't even be a blazing Scots legal nationalist to think that the composition looks problematic, when deliberating over what is a question of immense importance for Scots law and institutions. While tobacco vending may not cause the earth to quake, all of these devolution cases, demarcating the powers of Holyrood in more and less perceptible ways, all have the potential to have a significant impact on Scottish politics and democracy.

    As I noted in a comment on a recent UK Human rights blog piece, such is the interest - and are the challenges - of a legislature and executive, subject to forceful judicial review.