Sewel: no "constitutional safeguard", just a "self-denying ordinance..."

By any reckoning, Richard Keen QC is an uncommonly political lawyer. Former Dean of the Faculty of Advocates, and now the UK government's chief adviser on Scots law, Ruth Davidson appointed him chairman of the Scottish Tories in 2013. While in office, he reportedly summoned the party's MSPs to his "small castle", and subjected them all to a dressing down for being useless. Some disgruntled parliamentarian, ungrateful for this advice, leaked the encounter to the media. This interlude seemed to do his political career no harm. When David Cameron secured his majority in 2015, and the Liberal Democrats were ejected from government, Keen took up Jim Wallace's vacant office of Advocate General for Scotland.

In that position, Keen appeared before the UK Supreme Court this morning, to speak to the devolved aspects of the ongoing Brexit case. We substantially knew what the Advocate General proposed to argue from his written argument, but the Justices afforded him an hour to expand on his points. We may hear from him again, in reply, after the Lord Advocate has made his submissions on behalf of the Scottish Government on Wednesday. 

Keen's message to the Justices was characteristically trenchant and forthright -- but you have to wonder whether it was politically wise. Keen's argument is essentially a simple one. Parliament is sovereign. Nothing in the devolution settlements changes that. Indeed, the Scotland Act specifically recognises that Westminster retains competence over foreign affairs, including EU negotiations. It also retains power to legislate concerning devolved matters. Parliament is sovereign. It can make or unmake any law: the Scotland Act is no exception.  

Where this gets controversial, however, is when we turn to the so-called "Sewel convention". Since 1998, Westminster has recognised that it will not legislate for devolved matters without the consent of Holyrood. What do we mean by devolved matters? Generally, this has been understood as (a) passing legislation which falls within Holyrood's powers, or (b) changing the legislative competence of Holyrood by adding or subtracting from its authority, by devolving more powers, or re-reserving powers which were once reserved. 

But this convention gave Holyrood very limited legal protection. In states with codified and entrenched constitutions, the central government does not have the power to abolish regional parliaments, or to intrude on their competencies. The courts would block any attempt to do so. Some people wondered: why should Scotland be any different? Shouldn't the permanence and privileges of Holyrood also receive some legal protection?

In the wake of the 2014 independence referendum, the Smith Commission report agreed that"the Scottish Parliament will be made permanent in UK legislation" and that the Sewel convention should be "put on a statutory footing". Both of these commitments were reflected in sections one and two of the 2016 Scotland Act.  But did these "constitutional protections" really make much difference? In the political domain, David Mundell and his colleagues made much of these concessions. The statutory recognition of Sewel and Holyrood's permanence were important, they said, meaningful.

That claim lies in ruins this afternoon, after Richard Keen's Supreme Court submissions. So what did he say? Characterising this statutory recognition of the convention as "a self-denying ordinance", Keen continued, it was only "a political restriction upon Parliament's ability to act, no more and no less than that" and in no sense any "qualification or inhibition upon parliamentary sovereignty."

This is all very well and good, you might well think, before 2016. From 1999 - 2016, Sewel was just a political convention. You didn't find it in any law. But surely the Scotland Act must make some kind of difference? Surely there was some point in including Sewel in the 2016 Act? If there wasn't, if the idea Westminster will not "normally legislate for devolved matters without consent" is just empty words, just hot political air, then why the devil did MPs do it? 

The same thought struck Lord Sumption during the hearing. "But it cannot be described as a purely political force once it is enacted in a statute?" he asked. "Do you submit its incorporation as an Act of Parliament makes no difference to its legal effect?" he wondered.

Richard Keen's answer was consistent with the orthodox logic of his submission - but it remains politically stark. Yes, he said. The statutory recognition of Sewel is of no legal significance whatever. "The correct legal position", he concluded, is that Westminster "is sovereign, and may legislate at any time on any matter."As Graeme Cowie observed in the comments at the end of my last blog, "anyone paying even the most superficial of attention knew sections 1 and 2 of the Scotland Act 2016 were weasel words."

That may be true of constitutional scholars like Graeme. But for ordinary folk who followed the passage of the Scotland Act through Westminster and Holyrood, who listened to David Mundell's defence of its provisions -- Richard Keen's uncompromising submissions today may come as something of an unwelcome surprise.

"A quintessential matter of political judgment for Westminster..."

Last Friday, the Lord Advocate published the Scottish Government's intervention in the ongoing Brexit litigation before the UK Supreme Court. James Wolffe QC weighed in behind the Divisional Court's judgment, arguing that the royal prerogative cannot lawfully be used to trigger Article 50. But Scotland's senior law officer also ranged beyond that. He points to the Sewel convention, arguing that if Westminster legislates to withdraw the UK from the European Union, the Scottish Parliament must be consulted. 

The Lord Advocate isn't arguing that Holyrood has a veto -- but that the UK constitution now expects MPs to canvas the view of MSPs before legislating on devolved matters. Modern understandings of the Sewel convention generally recognise that it has two limbs. Firstly, that Westminster ought to seek the consent of Holyrood before changing Scots law on issues falling within the Scottish Parliament's purview, like health, or education, or family law.  And secondly, that any changes to the powers of the Scottish Parliament itself ought to take account of MSPs' views. The same goes for any changes to the power of Scottish Ministers, whether enhancing or curtailing their legal authority.

This afternoon, the UK government have published their counterblast against the Lord Advocate's submissions (and parallel arguments, made by the law officers of the Northern Irish and Welsh administrations). You could only expect Richard Keen and his colleagues to resist James Wolffe's arguments, but as Jonathan Mitchell QC tweets this afternoon, the UK government's legal answers have a "strangely tetchy" tone, "supercilious and ill-tempered". Seasoned barrister Sir Paul Jenkins couldn't "recall a case where the government thought it wise to descend to such rudeness", which he describes as "unnecessary and inappropriate." Jo Maugham QC characterises the submissions as "fantastically" so.

In a nutshell, they are that devolution is irrelevant to the issues before the Court, that foreign affairs is reserved, and that ""the devolution legislation cannot add to the arguments" in the case "in any material way." But perhaps most eye-catching, are the UK government's observations on the need to seek consent from any of the devolved legislatures. "The Court is being invited ... to stray into areas of political judgment rather than legal adjudication." They argue the Supreme Court "should resist that invitation."

So how do they reach this conclusion? While recognising that the statutes establishing Edinburgh, Belfast and Cardiff assemblies are "very significant pieces of legislation", they contend that the Sewel convention is not justiciable - which is to say, unsuitable for judicial decision-making. It is, they say, a "legal irrelevance", just a "political convention", and not part of UK constitutional law. In support of this view, they cite Lord Reed -- one of the justices who will hear this case, In 2012, in the Imperial Tobacco case, Lord Reed described the convention as a “political restriction on Parliament’s ability to amend the Scotland Act unilaterally" -- not a legal restriction.

And as far as this goes, this is a perfectly orthodox account of the status of constitutional conventions in the UK. They have generally been regarded as "rules of constitutional morality", rather than rules of constitutional law, susceptible to enforcement by the court. But where the UK government's case hits a potential wrinkle is that Westminster chose in 2016 to inscribe this convention on the face of the Scotland Act. They simultaneously "recognised" the "permanence" of the Scottish Parliament. 

While Lord Reed was absolutely right in 2012, that the Sewel convention was only a political restriction Westminster had undertaken to abide by, this isn't straightforwardly the case in 2016. The UK government's submission - strikingly - has nothing whatever to say about this change, and the impact it might have on their arguments about the justiciability and enforceability of the convention. Back in 2014, Professor Mark Elliott tacked up this informative article about the different potential legal effects of these innovations. In its legal papers, the UK government body-swerves these implications altogether.

So does the statutory recognition of Sewel change anything? Maybe. Maybe not. As a number of us pointed out at the time, David Mundell formulated this statutory recognition in a consciously sleekit way. The new Scotland Act recognised only that "the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." "Normally" isn't a word you encounter very often in statutes. "Must" and "may", certainly. But not "normally." 

UK lawyers, unsurprisingly, have hung up their wigs on these words. Referring to the Scotland Act, they suggest the convention "does not purport to prescribe an absolute rule." Its content is only that “Westminster would not normally legislate” And here is the kicker. They argue that:

"... whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question in the context of a political convention." 

You didn't hear this kind of reasoning - at least in public - when David Mundell was talking up the virtues of the new Act, invoking the idea of a "new parliament, new powers, and new partnerships."

For the UK government lawyers, we end with the orthodox Diceyan vision of the tyrannical patriarch, and the erratic father figure never needs to keep his word, or follow his own rules. Whatever forms of "legal recognition" or apparent constraints Westminster inscribes on its constitutional legislation, "the Westminster Parliament is sovereign and may legislate at any time on any matter ... any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty." 

Theresa May's legal counsellors may be resisting any attempt for parliament to take back control over Brexit, but they take Holyrood's subordination to Westminster for granted. For Richard Keen and his colleagues, power devolved is ultimately power retained, whatever political grace notes ministers write into the latest iteration of devolution, whatever our constitutional statutes anticipate and provide. And if the strident, haughty tone of this reply is anything to go by -- how very dare you argue otherwise. 

You can read the whole UK government submission here.

Does EVEL breach the Acts of Union?

Like many powerful, symbolic documents, almost nobody ever reads the Acts of Union. Magna Carta, "the constitution" in America -- the myth often fails to withstand an encounter with the text. I've had occasion over the past couple of days to revisit Great Britain's founding statute after this case from Lord Gray began circulating amongst SNP supporters on social media. You can understand why. If it had any substance, it might look like constitutional dynamite which could be deployed against David Cameron's "English votes for English laws" proposals. The circulator concluded enthusiastically:

"I found the 1953 ruling someone pointed out earlier and it is very interesting indeed. The articles of union say that members of parliament returned by Scottish constituencies cannot be excluded from the House of Commons. This means excluded from voting on any legislation This is unalterable. No government can change it. It would appear that if a government attempts to do this the union is dissolved with immediate effect."

I am sorry to report that not only is this dead wrong on almost every point -- but the logic of the argument being deployed here is unintentionally surreal. First, the missing background. This isn't a "ruling" and nor is it from 1953. It is a partisan legal paper written by Richard Keen - who has just been appointed the Tory government's law officer for Scotland. It was written for Lord Gray in 1998 against the backdrop of the first Blair government's proposals to strip hereditary peers out of the House of Lords. Gray, a Scottish peer, wasn't a happy bunny at the loss of his family's privileges. His paper argues that it would violate the Act of Union to exclude Scottish hereditaries from the House of Lords. Article XXII provides:

"That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain."

If Gray's case was right, and the Union provisions could not be amended "for all time coming" -- then the SNP's long term commitment to House of Lords repeal would also represent an outrageous breach with the letter of the Acts of Union. On this logic, Pete Wishart ought to be campaigning for the Scots lords in ermine to be restated. I don't know about you, but this doesn't particularly appeal to me.

And if we're going to be strict about it, we've got another problem. By the letter of the Articles, somebody is going to have to tell the 56 SNP MPs that the Union specifies for all time coming that there should only be 45 Scottish MPs, and at least eleven of them are going to have to seek employment elsewhere.  Oh, and there's some more bad news about that independence referendum we all toiled away at back in September. The very first Article of the Acts of 1706 and 1707 reads as follows:

"That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom."

I doubt many Scottish nationalists would support that provision being inviolate. And it'll make republicans amongst us uncomfortable to learn that their democratic ambitions are to remain unconstitutional in our eternal kingdom until the end of time or the heat death of the universe -- just because a small cadre of elite opinion in the early 1700s said so. Considering Lord Gray's case, the House of Lords Privileges Committee, which included several judges, came to a similar conclusion. They rejected Gray's argument concluding that Article XXII of the treaty wouldn't be breached by giving him and his colleagues of the blood their marching orders. Indeed, this provision of the 1706 and 1707 Acts had already been repealed by Westminster some years earlier, in 1993 and 1964 respectively.  And damn right too.

But even if you disagree with this interpretation - it isn't obvious that any provision of the Acts of Union are relevant to the EVEL proposals at all. Digging further into the text, Article 23 has a good deal to say about the privileges of the sixteen Scottish peers in the House of Lords, but is mum on the rights MPs could expect to exercise in the House of Commons. The problems with EVEL are contemporary problems, and not ones which can usefully be addressed through the lens of a centuries old mercantile charter. We are at risk of being in the absurd position of pushing arcane constitutional arguments which would require sixteen Scotch lords to sit in Westminster, but which do absolutely nothing to enhance the argument about the status of Scottish MPs. 

Legal nationalism in Scotland is an interesting tradition, but despite my political inclinations, not one I have ever felt a huge amount of sympathy for. Colin Kidd's (2008) Union and Unionisms has an interesting discussion of evolving legal and political ideas since 1707 about whether the Acts of the Union are entrenched and still represent fundamental law in the UK. Lord President Cooper's celebrated comments in the (1953) case of MacCormick v Lord Advocate are much quoted. The Union settlement clearly preserved things which have been seen as pillars of Scottish identity since - the church, the distinct order of law. 

But for myself, I have never understood the place of the Acts of Union in that tradition. I'm indisposed to treat a commercial deal about salt and beer and window taxes with much reverence. Indeed, this is a paradoxical seam in the wider tapestry of Scottish nationalism. For many Scottish nationalists, the Union was "bought and sold for English gold" by a parcel of Scottish rogues -- but the agreement those "rogues" struck is today invoked as if it was Moses and the Prophets, in pious tones. On any reckoning, this is a perplexing combination of historical ideas to hold. This is a crooked deal, and we insist that it must be enforced to the letter and forever. 

UK Supreme Court justice, Lord Sumption, began a recent lecture on Magna Carta on provocative form. "It is", he said, "impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently." The same often goes for those other mythic texts in the UK and Scottish constitutional tradition, like the rampantly anti-catholic 1689 Claim of Right or the Scottish feudal oligarchy envisaged by the declaration of Arbroath.  Much of the contemporary force of these texts seems to derive from ripping them out of context and attributing to them democratic virtues and aspirations which would have seemed alien to the very people who drafted them. It is a conclusion to madden the lawyer, but the cultural significance of these documents is not exhausted by what they do or do not actually say.

Detached from their context, and their texts, these declarations and charters float freely in the popular constitutional imagination. Sometimes, they are used to promote a more democratic vision of the country's best traditions; sometimes for more reactionary purposes. In America, grown men don tricorn hats and 18th century militiamen uniforms, to argue that their constitution is betrayed by federal healthcare reforms. On this side of the pond, Tories are even now invoking Magna Carta neo-mediaevalism to justify hacking back the contemporary rights which citizens enjoy. And Scottish nationalists are appealing to the ancient and perpetual rights of Scottish peers to try to resist the Conservative solution to the very modern West Lothian question.

Our abiding passion for old documents and ancient sources of authority are fascinating -- but often strange. Very strange.

Wednesday's damp squib: pleural plaques...

If you douse the fuse, a powderkeg becomes little more than an damp squib, stubbornly resisting detonation.  My melancholy peaty divinations and worst fears about the AXA General Insurance & Ors v. The Lord Advocate & Ors case have - happily - proved comprehensively unfounded. There will be no political controversy today, ladies and gentlemen. Despite the boorach that was counsel for the Lord Advocate's oral submissions in defence of the Damages for Asbestos-Related Conditions (Scotland) Act 2009, the Scottish Government have carried the day in the UK Supreme Court, Holyrood's pleural plaque legislation surviving Lord Hope's searching judicial scrutiny. On account of my douce and parisimonious nature, I didn't hazard a shilling on the outcome, which it transpires was a cunning bit of caution.

Hope held that the Act was proportionate, and pursued the legitimate aim of "eliminating what are judged to be social injustices" [para 29].  He continued, ending with a (surprisingly forthright) endorsement of Holyrood's legislation:

33.  "Can it be said that the judgment of the Scottish Parliament that this was a matter of public interest on which it should legislate to remove what was regarded as a social injustice was without foundation or manifestly unreasonable? I do not think so. There is no doubt that the negligence of employers whose activities were concentrated in socially disadvantaged areas such as Clydebank had exposed their workforce to asbestos and all the risks associated with it for many years.  The anxiety that is generated by a diagnosis of having developed pleural plaques is well documented and it has been the practice for over 20 years for such claims to be met, albeit without admission of liability. The numbers of those involved, and the fact that many of them live in communities alongside people who are known to have developed very serious asbestos-related illnesses, contributed a situation which no responsible government could ignore." (my emphasis)

For those interested in constitutional law in general, and devolution in particular, perhaps more interesting is the Court's unflinching rejection of the idea that Holyrood's legislation could be challenged at Common Law, on grounds of unreasonableness, irrationality and arbitrariness. As Hope notes: 

42. "...the question as to whether Acts of the Scottish Parliament and measures passed under devolved powers by the legislatures in Wales and Northern Ireland are amenable to judicial review, and if so on what grounds, is a matter of very great constitutional importance. It foes to the root of the relationship between democratically elected legislatures and the judiciary."

The Supreme Court (rather summarily) dismissed the possibility that Holyrood's Acts can be reviewed on these grounds, strongly affirming the powers of the Scottish Parliament.  Said Hope:

49. "The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country's best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate."

Eyebrows will likely be raised (and are already climbing foreheads), if one is stout-hearted enough to read all the way down to paragraph 51 of Lord Hope's judgment, with its not-so-oblique reference to the SNP's majority in Holyrood in the characteristic, suggestive archness of judicial prose. Having discussed the judicial review of legislation emanating from Westminster, Hope asks, rhetorically:

"Can it be said, then, that Lord Steyn's endorsement of Lord Hailsham's warning about the dominant over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in devolved legislatures? I am not prepared to make that assumption. We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the Committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise".

That'll be a spanking for the Maximum Eck, and a dressing-down for MacAskill. Otherwise, a cheery day then, for those the 2009 Act sought to aid, and a dismal one for the insurers*, who have now been pretty comprehensively trounced in the Outer and Inner Houses of the Court of Session, and now down in London. As disappointed legal persons, AXA et al might consider lodging an application with the European Court of Human Rights. Given the backlog that institution labours under (presently numbering some 150,000 applications), even if their application was declared admissible by the European Court (and only 3% of cases are), years will pass before a further judgment from Europe on this case is even possible. 

Like as not, but for those who must now take up their actions for damages under the 2009 Act, c'est finis.

UPDATE

*Specialist in scone monomania and occasional blogger on matters snowy and legal, loveandgarbage, has helpful emphasised the importance of paragraph 89 of the AXA judgment, from Lord Mance. To gloss the issues, with which I am no more than passingly familiar, Mance's logic suggests a way in which the insurers still may be able to escape liability for compensating pleural plaques sufferers for the negligence of their employers. It is one thing to say the 2009 Act is within Holyrood's legislative competence. As some contracts of insurance were likely made under English law rather than Scottish, there seems to be potential for insurers to get off the hook - while the employers would be left to shell out damages to pleural plaques sufferers themselves, unable to shake the pennies from their insurers.  The pertinent section of Mance's concurring judgment reads in full:

89. Whether and how far there may be such a read-across is not a matter before the Supreme Court. The only copy of an actual insurance policy before the Supreme Court is a Combined Legal Liability Insurance Policy issued by AXA Insurance UK plc to John Laing and Son Ltd of Page Street, London NW7 2ER through C E Heath & Co (London) Ltd for three years commencing 1 January 1977, covering the insured “against all sums which the insured becomes legally liable to pay as damages in respect of bodily injury (including death or disease) sustained by an Employee arising out of and in the course of his employment or engagement by the Insured in the Business and caused within the Geographical Limits during the Period of Insurance”. The Geographical Limits were worldwide.

The respondents accepted that this policy is and others are likely to be subject to English, rather than Scottish, law. A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland. However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world. Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury. I say no more about the answer, which may be elicited in another context or suit. Suffice it to say that insurers such as AXA have ample reason for direct concern about their forthcoming exposure.

Lapdancing in Court!

A very significant decision from the Court of Session this week in Brightcrew Ltd v. the City of Glasgow Licensing Board, on the subject of lap-dancing. Or more precisely, the extent to which such establishments can be regulated by alcohol Licensing Boards across the country.  Although the vires powers of a public body may not immediately set political hearts racing, it is important to understand this judgment in its context, and the uses to which Glasgow attempted - in the event unsuccessfully - to put its alcohol licensing powers. The Council's general view is that “lap-dancing is a form of sexual exploitation which degrades women and encourages their objectification by men.” While Glasgow's Licensing Board is an independent regulatory body, it is constituted by eight city councillors. Without attempting to distort their approach, essentially Glasgow City Council attempted to use its alcohol licensing powers to try to control - and exclude - lap-dancing clubs from the city.  In support of this approach, a non-statutory Code of Practice was promulgated, with extensive provisions with respect to adult entertainment in licensed premises. This document is not published, but is substantially spoken to in the Board's long Liquor Licensing Policy Statement. Section eleven of the statement narrates a number of strictures to obtain in licensed premises laying on adult entertainment, noting that:

"The Board believes that in premises where the sale of alcohol is combined with adult entertainment, which is designed to be sexually explicit and therefore, potentially, involves a higher degree of risk to both customers and performers than in some other types of licensed premises, it is entitled to regulate that particular activity by way of licence conditions ... in terms of the Licensing Objectives of Securing Public Safety and Improving Public Health."

By withholding alcohol licences, the Board clearly hoped that the proprietors of such clubs would become financially unsustainable - presumably lager-breathed men in a crumbled suits require sustained alcoholic refreshment to accompany gyrating female nudity - and so close their doors and clear their stages. The specific club at issue in the case was "Spearmint Rhino", situated on the city's Drury Street.  Glasgow's Licensing Board refused the licences on the 15th of May 2009. The Board's powers to grant or refuse "premises licences" for the sale of alcohol are governed by the Licensing (Scotland) Act 2005.  Section 23 of the Act sets down how such applications are to be determined, including grounds for refusal. Basically, if none of the grounds for refusal are present, the Board must grant the licence and if any grounds for refusal are present, they must reject the application. The statute does not afford the body any residual discretion to supplement the list of grounds, however, some of the standards they are directed to apply are clearly of a more discretionary character. These include a ground of refusal, where the Board...

"(c) that the Licensing Board considers that the granting of the application would be inconsistent with one or more of the licensing objectives" [2005 Act §23(5)(c)]

And...

(d) "... having regard to—

(i) the nature of the activities proposed to be carried on in the subject premises,

(ii) the location, character and condition of the premises, and

(iii) the persons likely to frequent the premises,

the Board considers that the premises are unsuitable for use for the sale of alcohol..." [2005 Act §23(5)(d)]

The relevant licensing objectives are set out in §4 of the Act...

The licensing objectives

(1) For the purposes of this Act, the licensing objectives are—
(a) preventing crime and disorder,
(b) securing public safety,
(c) preventing public nuisance,
(d) protecting and improving public health, and
(e) protecting children from harm.

In line with the claims made by their Licensing Policy Statement, the Board rejected Spearmint Rhino's licence application on the basis that they were protecting and improving public health and preventing crime and disorder. They also held that the premises were unsuitable for the sale of alcohol. Here, the Court of Session only had to decide on the first of these grounds for rejecting the club's application, the issue under §25(5)(d) having been resolved at the shrieval level. The matter was set before Lords Eassie, Clarke and Wheatley to determine.

The Board based its decision on Spearmint Rhino's application on breaches of its non-statutory Code of Practice, including risk assessments concerning (i) hazards faced by dancers in such establishments; (ii)  flyers distributed by the club, which must include "no exposure of breasts or genitalia", a condition which the Board believed the club had breached; (iii) drinks promotions; (iv) reported physical contact between dancers and "patrons" and (v) dancers shedding all of their clothes, contrary to the requirements set out in the Board's code. As an aside, an anthropologically curious detail. Apparently Edinburgh's "pubic triangle" is governed by different rules of propriety than Glasgow. Under this heading, a Glaswegian licensing official alleged that that they had spotted two dancers in the club who had "removed their lower garments to knee level thereby exposing the genital area". Lord Eassie primly narrates...

"It was explained to the Board at its meeting that the two ladies in question were engaged only for that evening; that they were told at a "briefing" to retain their bikini bottoms; but they were accustomed to different practice in Edinburgh, whence they came." [para 9]

There are some questions about whether particular instances complained of were evidenced or without foundation - we need not get into them. The Board contended that, taken together, these breaches of its non-statutory Code justified its refusal to grant Spearmint Rhino a liquor licence, under the licensing objectives set out in the 2005 Act.

For the club's proprietors, jaunty wig-wearer and Dean of the Faculty of Advocates, Richard Keen QC, argued that the Board's function was limited to the sale of alcohol and that...

"...the generality of the objectives described in the 2005 Act as licensing objectives - such as "protecting and improving public health" - did not give to a licensing board, properly exercising its function ... power to lay down conditions, however desirable those conditions might be seen, which were not linked to the selling of alcohol".

Ever one for a picturesque metaphor and telling comparison, Keen argued that on the Board's logic, it would be entitled to deny pubs licences for the sale of alcohol, if they refused to accompany every plate of pie and chips sold with a delightful and healthy salad, better to trim the waists of the nation and thereby "protect and improve public health". No so he contended. Regulating lap-dancing via alcohol licensing, analogous to mandatory cucumber-provision in hostelries, proceeds on a "misconception of the proper ambit and use" of the Board's powers. As Keen's opponent, Sarah Wolffe QC recognised, the Dean's approach was a "full frontal" attack on the powers and practice of the Glasgow Board. And that full frontal assault carried the day and persuaded the Court. Giving judgment, Lord Eassie held that...

"...while the [licensing] objectives so catalogued are couched in very general terms such as "preventing crime and disorder", it is important to note that those objectives are not, so to speak, "freestanding". They are qualified by the introductory reference to their being "licensing" objectives. Since the licensing with which they statute is concerned is the licensing of alcohol, it follows in our view that, in the context of section 23(5)(c) of the statute, inconsistency with a licensing objective is inconsistency flowing from permitting of the sale of alcohol on the premises in question. The fact that the objectives listed in section 4 of the 2005 Act are all desirable in a general sense does not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol." [para 26]

Basically, this means that the Glasgow Board's attempts to use its powers to grant alcohol licences creatively to regulate the activities of lap-dancing establishments in the city - has comprehensively miscarried and cannot continue. Despite past practice, the Court of Session has held that their code is, bluntly, irrelevant to the question of whether or not a premises licence ought to be granted to an applicant, whether or not their establishment includes adult entertainment. Instead, in each instance, the Board would have to demonstrate how an infraction of their non-statutory code actually relates to the sale of alcohol. Take the flyers. As Eassie notes in typically circumspect and circumlocutory judicial style...

"... while it may be that on a close examination of the offending flyer an observer might conclude that the artist had not plainly demonstrated the presence of a garment covering the breasts of the two ladies whom he depicted with the consequence that there was thus, in the view of the Board, a breach of their code of practice, it is not evident, and is not explained by the Board why that incident can properly be said to make the sale of alcohol at the premises inconsistent with a licensing objective." [para 28]

This decision will undoubtedly leave the Board and the rest of Glasgow City Council fuming, as it substantially narrows the powers they thought and purported to wield. While the Board may now encourage clubs like Spearmint Rhino to make provision for the sanitation of their employees, and encourage or deprecate some forms of adult "performance" - insofar as these strictures do not speak to the issue of alcohol - they are irrelevant to the issue of determining whether a liquor license is granted or withheld. Having hoped to use the threat of denial of a licence as the stick to regulate how lap dancing clubs comport themselves with respect to their employees and how their employees ought to conduct themselves with respect to their ogling public - the Board finds itself not just disarmed, but its regulatory stick comprehensively broken across the knees of the Court of Session by Keen's argument.

Scotland's coelacanth: the legal establishment...

Instinctively, I can understand the irritation which a character like Lord Hope of Craighead can provoke.  Those who watched the BBC's documentary following four of the Justices of the UK Supreme Court (of which, a brief clip here), may recognise what I called Hope's "slight, rather dowdy and bespectacled person". As he shuffles around a supermarket, or scurries through the London underground, only the most obsessive judge-spotter would be able to identify this quiet man under his outsize hat. Unlike their American counterparts, no Supreme Court justice in the UK is a household name, despite Alex Salmond's best efforts in recent weeks to single out Lord Hope for special recognition. Day to day, despite the national compass of his judgments, and the millions of people theoretically subject to them, most would struggle to distinguish Lord Hope of Craighead from Adam. That the same is true of the average Holyrood or Westminster backbencher, whatever their allegiances, can never rankle in quite the same way.  For those with impatient political urges, there is something about the stiff self-confidence of the judicial character, the tendency to experience and talk about the qualities of their own judgement in unsatisfactory opaque terms, which all too easily nettles. Paradoxically, the sting can be even more pronounced, when it is delivered with the mildness of the Scots Deputy President of the UK Supreme Court. Modesty of manner only aggravates the offence.

For those with a more encompassing idea of the political, who consciously or unconsciously accept critical theories of law, the constitutionally and often politically-laden deliberations of a judge at the highest level, for all of the accompanying shuffling of texts, gathering of submissions and reference to existing case law - can easily look like so much moonshine. Where judges insist their deliberations unerringly entail the conclusions they reach - critical folk, peering in, can readily come to suspect that the desired conclusion is identified first and only then is legal reasoning generated with an eye to its justification. Judges and lawyers also have a tendency to use terms like "objectivity" without any apparent sense of embarrassment, as if they were just old-fashioned grocers, just slapping a case on their scales - and reading off the accurate result in trusty bronze weights. Add to this some of the other legal consciousness narratives of our time - the idea of law as a book of more or less determinate rules, immoveable and independent; the idea that law is there to be tactically manipulated to particular ends; the idea that law is capricious, an expression of more or less arbitrary power - and you have a recipe for a profoundly difficult conversation. Do you believe in the rule of law? What does this rule of law look like, when your laws aren't framed as rules? How seriously should we take judicial disavowals of the political character of their decisions anyway? What then is the legitimate compass for "political" figures to criticise judicial findings?

A few weeks ago, I argued that defending the distinctiveness of Scots Law has its political curiosities, not least in that a very small segment of the Scottish population have any substantial ideas about what distinguishes Scots legal traditions from the English. This flight from detail was confirmed last week in the highest quarters of government. After all of its bilious indicting of Lord Hope for leading English Justices of the UK Supreme Court in obliterating Scottish legal distinctiveness, Scottish Ministers have justified the provisions of their rushed  anti-sectarianism Bill by claiming, without any irony, Scotland should be "brought into line with England".  The mind boggles. Actually, it occurs to me that we might go still further.  If few are likely to rush to the political barricades to defend Scotland's Roman distinctiveness, imagine the tiny band who would form up to defend the "Scottish legal establishment", as it is often styled.

Ideas about this establishment are manifold, some rooted in experience, others fantasies.  Yet it is fair to say that the social life and characters associated with Scots law are conceived in profoundly ambivalent ways in our public discourses. In the semiotic sphere, solicitors tend to be overlooked.  It is familiar to conceive of the Scottish judiciary and the Faculty of Advocates as a rather queer legal aristocracy, their emblematic musty wigs and gowns and plummy voices picked up in Edinburgh public schools - hilariously incompatible with popular perceptions of the ruling character of Scottish life. Whatever the reality about the social origins, privilege and gender profile of the membership of the Court of Session and Scottish Bar, these organisations are primarily envisaged as defining castes of Edinburgh, and like the city in which they are based, easily conceived as Anglicised (and by consequence, de-nationalised in Scottish terms), haughty, haute-bourgeois, tedious, prosperous - and probably Tory. There is prowess too - the advocate is generally presented as an impressive and prestigious figure. New Club memberships, New Town addresses, participation in selective golf-clubs - for many Scots, this whole cast of contemporary legal characters could be comfortably stuffed and mounted in the National Museum of Scotland on Chambers Street, as exhibitions of reactionary and outmoded manners - stuffy monuments to legal Edinburgh's cockroach capacity to resist time, wind, rain and flood - preserving its ancient privileges and old pomposities.  When a legal scandal blows up, it comes as a surprise when this fossil swims up quite alive and quite confident, not seeming to recognise how fustian and out of place in contemporary Scotland it appears. Marble-mouthed characters like Richard Keen QC, Dean of Faculty of Advocates, seen last week in the UK Supreme Court with wig and spectacles perched at rakish and condescending angles respectively, are all too easily pressed into the service of this representation of Scotland's legal world.

As Kenneth Roy noted in a recent edition of the Scottish Review, it is precisely the idea that the conceited-seeming and over-entitled expectations of this Scottish legal establishment were being denied which lent the former Lord Advocate Elish Angiolini her profound symbolic power and charm. There is plenty of malicious glee to be had, imagining setting a Govan coalmerchant's daughter and solicitor over the heads of would-be grandees of the Faculty, who were reduced to gawks and the frustrated puffing of foiled ambition.  And imagining is the crucial point in all of this.  By no means would I accept this representation of the Scottish legal world unqualified. Indeed some of it is simply false. Yet some approximation of these ideas and images of the legal establishment enjoy extensive purchase in the Scottish public consciousness and public commentary. Despite greater diversity in the professions, despite a large and growing cohort of women, despite the large number of advocates who practice outside Edinburgh, gendered and social assumptions persist unreformed. That such ideas can so easily be summoned to mind are the vital background to the recent UK Supreme Court ballyhoo. As other bloggers have modestly noted, the detailed disagreements about the extent of the UK Court's jurisdiction, the nature of the rights afforded by the European Convention, of the devolution Act and of Scottish legal history, even the justices or injustices of the Cadder or Fraser judgments - are unlikely to mean much to or move most folk, politically speaking.  Salmond's rhetoric is much more likely to be understood in terms of more straightforward images and impressions - and the proxy pleasures of telling the arrogant old crows of the Scots judiciary to go and stuff it.  The real paradox of Salmond's position is that he is effectively mobilising such critical notions of the establishment against Lord Hope while simultaneously attempting to perpetuate the autonomy of that selfsame legal establishment - and even aggrandise their jurisdiction.

On the other side of things, I do wonder about the strategic implications of the First Minister's roistering.  The election is won, but the independence referendum is yet to win.  As recent polling on Scottish independence has indicated, Scottish AB voters - the upper and middle classes - present a particular challenge from the N(/n)ationalist perspective. According to TNS-BRMB, Scots bourgeois respondents were the most inveterately opposed to independence, of all Scottish social grades, recording the following response:

AB ...

• Agree ~ 29%
• Disagree ~ 58%
• Don't know ~ 13%

While much of the public may be unmoved by - or even vaguely favour - the tenor of the First Minister's argument with the jurisdiction of the UK Supreme Court, the same is, I fancy, unlikely to be true for these already disaffected AB voters.

The Holyrood assizes...

Oral evidence continues at Stage 1 consideration of the Scottish Government's Double Jeopardy (Scotland) Bill, which proposes (1) to enshrine the principle of tholing your assize in statute (having been tried and acquitted, your judicial ordeal is over and the disposal is final) and (2) delineate clear exceptions which will allow acquitted individuals to be retried in Scotland under particular circumstances. I'm conscious that the issues raised by the Bill are simultaneously politically important and interesting - and often befuddlingly technical. No sane soul, consciousness unassailed by a legal education, can much care for the legal draftsman's style, which invites the reader to leap to and fro in a tangle of clauses and subsections. Its all too easy to trip up. Today, I thought I'd quickly summarise what the Bill proposes and emphasise one or two of the issues raised by learned lawyers in their submissions to Holyrood's Justice Committee. I've previously discussed the evidence of the Scottish Law Commissioner Patrick Layden QC, who informed the Committee that unlike the unsolved "cold cases" of telly cop dramas, in cases where the accused is acquitted, physical evidence is currently disposed of, destroyed, lost. The upshot of which being, practically speaking, that this reform will not allow new science to be applied to old physical evidence locked away in some police archive, where there has been an unsuccessful prosecution.

Summary of key sections of the Bill...

As currently drafted, these include "tainted acquittals" (§2), allowing re-prosecution for the same or similar offence - where the acquitted person or some other person has been convicted of an offence against the course of justice in relation to the trial - or where the Court is persuaded, on balance of probability, that an offence such as bribery or suborning perjury has taken place. It does not matter what offence the individual was acquitted of. Any competent charge could be retired, with the permission of the High Court, if the original trial is shown to have been "tainted" for the purposes of the Bill.

The most prominent proposal in the Bill is to introduce a "new evidence exception" (§4). In contradistinction to the "tainted acquittal" provision, this aspect of the Bill would only apply to a select series of offences. The draft Bill would empowers the Lord Advocate to apply to the High Court to set aside the acquittal and grant authority to bring a new prosecution. In considering whether to do so, the Bill requires the High Court to consider the following on any "new evidence" (§4(3)):

(a) the case against the accused is strengthened substantially by the new evidence,
(b) the new evidence was not available, and could not with the exercise of reasonable
diligence have been made available, at the trial in respect of the original offence,
(c) on the new evidence and the evidence which was led at that trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of—
(i) the original offence, or
(ii) a relevant offence (had, in the case of an offence mentioned in subsection (2)(b), such an offence been charged), and
(d) it is in the interests of justice to do so.

Criticised by some as being unnecessary given the foregoing general section, nevertheless the draft Bill picks out admissions of guilt after an acquittal in largely similar terms. Remember, the proposed Bill limits the availability of any new evidence re-prosecution to a selection of offences. In this respect, MacAskill has largely copied the existing model in England, albeit with different offences listed. They are as follows:

Offences against the person
Murder; Culpable homicide

Genocide etc.
Genocide (s1 of the International Criminal Court (Scotland) Act 2001); A crime against humanity (ibid); A war crime (ibid).

Sexual offences: common law
Rape; clandestine injury to women; abduction of a woman with intent to rape; assault with intent to rape or ravish; indecent assault; Lewd, indecent or libidinous practice or behaviour; Sodomy.

Sexual offences: offences under the Sexual Offences (Scotland) Act 2009
Rape; Sexual assault by penetration; Sexual assault; Rape of a young child; Sexual assault on a young child by penetration; Sexual assault on a young child; Causing a young child to participate in a sexual activity.

Other sexual offences
Incest; Sexual intercourse with a stepchild; Unlawful sexual intercourse with a girl under 13

As it is currently drafted, the Bill would permit the Government of the day to add or delete offences from this list, by subordinate legislation (§4(7)).

Justice Committee evidence...

Yesterday, the Lord Justice Clerk, Lord Gill, gave evidence to Baillie Bill Aitken's parliamentary Committee, which heard last week from Richard Keen QC, Dean of the Faculty of Advocates - Alan McCreadie, deputy director of law reform with the Law Society of Scotland - John Scott, former chair of the Scottish Human Rights Centre - and Shelagh McCall, a commissioner in the Scottish Commission for Human Rights.  Interesting remarks were made by a number of parties, particularly on the idea that this legislation should only apply to serious cases. 

But how to do it? The Government are proposing a list - but the list is potentially problematic, in that its present drafting might conceivable coverage comparatively minor issues, first prosecuted before a sheriff alone. Most offences in Scots criminal law are triable summarily (before a Sheriff sitting alone, with more limited sentencing powers) or on indictment (before a Sheriff sitting with a jury or before a Senator of the College of Justice and a jury in the High Court of Justiciary. Both have enhanced sentencing powers). Certain offences - such as murder, rape, treason - are traditional Pleas of the Crown and must be tried in the High Court. Unless you limit the list to these of potentially re-prosecutable offences to these charges - it is very difficult to abstractly to limit re-prosecution to serious cases. Any reference to assault would encompass a drive-by bruising from a flung bread roll. Any reference to fraud would include wry schemes netting the fraudster millions or only pennies. The point is that Scots law generally doesn't distinguish between seriousness at the level of offences, but on the forum chosen to prosecute, the sentencing powers of the forum - and the punishment imposed. This presents a real difficulty for the list-based approach the Government is adopting, even before one falls into a discussion about whether drug offences, robbery - and attempts - ought to be included.

As I understand Alan McCreadie's evidence - the Law Society have suggested a cunning wheeze to get around the problem. Why not, they argue, only permit a new evidence re-prosecution in individual cases where the acquitted person had been tried on indictment? Rather than scribble a list of qualifying offences - problematically open for the government to add and subtract from - primae facie this approach would only permit reprosecution in cases which the Crown Office and Procurator Fiscal have already identified as sufficiently serious to warrant proceeding on indictment, before a jury. Given the exceedingly small number of cases in Scotland tried in this way - off the top of my head, a scanty 5% of total trials - it would significantly limit the ambit of the reform.

I do wonder about more extensive indictments, however, where a case was brought in the High Court on the basis of a serious offence - with a number of more minor infractions tacked on. After being acquitted on all counts, the Crown could then recall the acquittal and reactivate (with "new evidence" and the High Court's consent) the associated more minor offences, which in themselves may have only warranted summary proceedings before a Sheriff.  What this emphasises, as much as anything else, is that a measure of arbitrariness and unpredictability is inherent in the proposed reform. So too is a familiar tendency of Scottish law reform - pass sweeping new offences or devolve broad powers - and then trust in the Crown Office not to use them as drafted. This exchange been Tyrant Bill and Lord Gill exemplifies the attitude:

Lord Gill: "... Of course, you also have a considerable safeguard overhanging all of this, which is the position of the Lord Advocate, who exercises wise judgment in the public interest. The office of Lord Advocate is a considerable constitutional safeguard."

The Convener (Baillie Bill): "We are totally reliant on the Lord Advocate and her successors adopting an attitude towards the provisions that will ensure that they are used sparingly."

Lord Gill: "Yes. That is why, in this country, prosecutions are not conducted oppressively. The office of Lord Advocate is such that before any prosecution is launched, the public interest is carefully considered."

Its simple! Once we've over-criminalised great swathes of conduct and empowered our prosecutors to pick and choose who really deserves being thoroughly radished by public power - we have room to be just and persecute the deserving while delivering the meek and the "blameless". Its a perverse mode of legislation, but one which our Parliament is frightfully keen on.

Tales from Parliament House Vol. 2 - Army negligence

The grey face of Parliament House, with its Classical flourishes, always felt very Edinburgh to me. Slender sphinxes perched atop its pillared roof, the geometric sunburst stonework arches of its façade, recorded in grey. While in the centre of the Parliament Square, as Robert Louis Stevenson had it in his Picturesque Notes on Edinburgh, a "bandy-legged and garlanded Charles Second, made of lead, bestrides a tun-bellied charger. The King has his back turned, and, as you look, seems to be trotting clumsily away..." Erected in 1685, it is an appalling statue. The Spanielesque Charles II of the popular consciousness is rendered instead in the manner of an equestrian Roman general or Caesar, wielding something which resembles a decidedly plain club of state. The proportions are all wrong. Meanwhile, in composing the dedication chipped across its Craigleith sandstone plinth, the chipper (Robert Mylne, the Kings Master Mason in Scotland) seems to have failed to account for the spatial distribution of his script across the stone's face. His panic to fit it all in seems to mount as the text continues, here narrowly compressed, there inflated and elbowing neighbouring letters impertinently.

Inside the House of course, past its famous roof and hall, the Court of Session goes about its legal business. This week, I wanted to highlight just a couple of jurisprudential items. Firstly, we return to the plueural plaques litigation on the legislative competence of Holyrood's Damages (Asbestos-Related Conditions)(Scotland) Act 2009 and its newest episode. Against the strenous but somewhat Quixotic and desparate submissions of Richard Keen QC (Dean of the Faculty of Advocates and Counsel to the litigating insurers), 11 individuals who are potential beneficiaries under the Act have been granted leave to enter the insurers' judicial review proceedings under the Rules of Court. Functionally, this means that while it primarily falls to the Lord Advocate to vindicate the validity and competence of Holyrood's legislation in Court, the insurers will now also have to contend with the arguments of counsel representing these 11 folk. Coincidentally enough, their advocate is the sometime moonlighting Platonic-Aristotelian analyst, Aidan O'Neill QC. Although the latter made clear he won't be burdening the Court's time by replicating the Law Officers' submissions, between them they should give the chancer insurers a run for their money. And ultimately, I trust, these eleven folk their democratically mandated compensation.

Secondly, I wanted to mention the case of Margaret Valentine v. the Ministry of Defence. The case got some coverage in the Scotsman this morning. Valentine's son, Sapper Robert Thomson, aged only 22, died in Iraq in 2004. He was not killed by enemy fire, however, but was, in the words of Lord Bonomy's judgement "buried and crushed by the collapse of earth within a trench from which he and another sapper were engaged in recovering soil samples." The tragic, miserable facts were these:

[2] Many of the facts are uncontentious. At the time, Sapper Thomson was attached to 62 Works Group Royal Engineers located at Basra Palace. He was instructed by then Staff Sergeant, now Warrant Officer, Craig Lee Dutton to assist Sapper Craig Douglas Price who was tasked by Dutton to excavate a trench or trial pit, in order to obtain soil samples from various depths, using a light wheeled tractor similar to a JCB. These were required in connection with a proposal to build a jetty at the Shatt al'Arab Waterway. The digging was done within fifteen metres of the Waterway.

[3] Dutton described Thomson as a banksman to Price in retrieving soil samples. He was involved simply because he was available. He was to assist Price as well as act as eyes and ears for hazards, for example, any hazard he spotted in the course of executing the work or any person approaching the site. The task involved using the extending arm of the digger, with a bucket or hoe on the end of it, to dig out a trench which would be the width of the bucket (600mm or 750mm, no one was sure) or a bit more, and was in fact somewhere between 600mm and 1000mm wide, to the maximum depth that the digger could go, which was around three metres. It initially took around 30 minutes to complete the task. That involved identifying apparent changes in the soil composition and taking samples and measuring the depth where these occurred. Price operated the digger. He placed the bulk of the spoil to one side of the trench and sufficient, somewhere between a bucket and two bucketfuls, to the other side whenever a change occurred, for the deceased to shovel into a black plastic bag as a sample. When the task was completed, the area which had been dug out was reinstated by backfilling the spoil into the trench. The sample bags were then taken to the headquarters. When Dutton checked them, about half an hour later, he noted that what was apparently the deepest sample was too small. He directed Price and Thomson to go and get another sample at that depth. They realised that they had messed it up and readily went off to do so.

[4] It is not entirely clear whether they simply dug out the original trench again and took a further sample from the bottom, or dug a fresh one nearby. I consider that it does not actually matter in the end of the day, but tend to the view that, at least in part, what they dug out was a separate trench. I shall refer to that further at a later stage in this opinion. When Thomson signalled to Price that they had reached the maximum depth for the machine, Price stopped digging, moved the boom of the unit to the left away from the hole, and placed the buckets onto the ground to make it safe. He then pulled the seat lever to rotate the seat so that he was facing forward in the cab. His back was to Thomson as he began to dismount from the cab on the far side of the JCB from Thomson. By the time he was dismounting, no more than a minute after he had last seen Thomson standing one to three metres from the trench, Thomson was at the bottom of the trench trapped under clay material which had become dislodged from a point in the wall of the trench about one metre down and below. Frantic efforts to rescue Sapper Thomson ensued. Sadly these proved futile. No one saw how he came to be in the trench.

The Ministry of Defence argued that Thomson's presence in the trench was solely his own fault , his death wholly attributable to his own actions - or very substantially caused by the same. If you are interested, you can read the discussion in the case itself. In para [40], having cited particular reasonable preventitative steps, Lord Bonomy held that:

"the failure of the Ministry of Defence to take these reasonable steps to prevent a fall into the trench, the deceased would not have fallen in. That in the circumstances was a breach of the Ministry's duty of care to the deceased at common law. They failed to carry out an adequate risk assessment with the result that they failed to devise and institute a safe system of work for carrying out the task of taking the soil samples. In addition, the workplace was not safe as a result. The Ministry's breach of the duty of care owed to Sapper Thomson caused him to fall into the trench and thus caused his death"

That being so, he awarded damages to Valentine to the tune of £42,000. Knowing next to bugger all about the law on personal injury, I cannot mount a cogent critique or comment on the case from a legal angle. That said, Valentine and her family have my heartfelt sympathies for their loss.