Issue 37 June 2007 - Current Awareness
ECHR ARTICLES INDEX
Article 6(1)-case 1
Article 8-case 1, 4
Article 3 of Protocol 1-case 2, 3
CIVIL PROCEDURE
(1) AR v Highland Council, [2007] CSOH 51
AR raised a damages action under s.8 of the Human Rights Act 1998 against the Highland Council ("HC"). She had been taken into the care of HC. She alleged that her care had been mismanaged and that she had suffered loss and that there had been a breach of her Art.8 rights to respect for her private and family life. For example, she was Roman Catholic but had been placed with Protestant foster parents. The alleged breaches of Art. 8 took place for the most part before the 1998 Act was in force. The action had been raised in the Court of Session under emergency legal aid cover.
The Scottish Legal Aid Board ("SLAB") decided, however, to restrict the legal aid certificate to sheriff court proceedings only because the case had not been quantified. AR sought to have the case remitted to the sheriff court. HC opposed this. They argued that AR was correct when she identified the Court of Session as the appropriate forum for the action. The action raised the question of public law duties incumbent upon the defenders and the interaction of those duties with common law duties: the question of the retrospectivity of the 1998 Act and the controversial question of the duties on the defenders in respect of the pursuer's religion. Although its value was uncertain, its subject matter made it appropriate only for the Court of Session. If the action had been raised in the sheriff court, the sheriff would have been well entitled to remit it to the Court of Session on the ground that the importance or difficulty of the cause made it appropriate to do so. If the action were remitted to the sheriff court, counsel would still require to be involved and that would result in the additional cost of their travel to and accommodation in Inverness. If the action remained in the Court of Session, it would be the intention of the defenders to enrol to have the action withdrawn from the expedited procedure under Ch.43 and appointed to proceed as an ordinary action. All these other factors outweighed that of the restricted legal aid certificate granted to the pursuer and the motion should be refused.
Held: motion refused. (1) The nature of this action, involving novel and difficult questions of law, makes it appropriate only for the Court of Session and the Opinion of Counsel to that effect submitted along with the pursuer's legal aid application was correct. (2) The questions of the public and common law duties incumbent on the defenders, the retrospectivity of the 1998 Act and the duties of the defenders in relation to the pursuer's practice of her religion are all matters which should be decided in the Court of Session. These issues are wholly inappropriate for decision in the sheriff court. (3) So far as the decision of SLAB granting legal aid for sheriff court proceedings only is concerned, the Court had great difficulty in understanding the reason which they have provided for that decision. As stated above, the reason is that the case has not been quantified, so it is not shown why the matter should be in the Court of Session. It seems to be from the reason which they have provided that the only basis for their decision is the lack of quantification of the claim which did not appear to be adequate. As SLAB have accepted that the pursuer has probable cause to litigate and it had been decided that the only appropriate forum for this action was the Court of Session, the Court expressed the view that SLAB might now reconsider their decision to grant legal aid for sheriff court proceedings only. If they maintained their position it would arguably be irrational or perverse and also as amounting to a refusal of access to the courts to the pursuer and therefore a contravention of Art.6 (1), under reference to Airey v Ireland [1979] 2 EHRR 305.
ELECTORAL LAW
(2) Traynor and Fisher v Scottish Ministers and Secretary of State for Scotland, [2007] CSOH 78
Facts: T and F are convicted prisoners. Following the decision of the Inner House in Smith v Scott 2007 S.L.T.137 that the bar on voting in elections imposed on prisoners in s.3 (1) of the Representation of the People Act 1983 by prisoners breached Art.3 of Protocol 1, they sought declarator that Scottish Parliament (Elections etc) Order 2007 which was authority for the election due to take place on May 3 was unlawful and reduction of that Order. Such an election is required in terms of s.2 (2) of the Scotland Act 1998. They also sought to interdict. They argued that standing the decision in Smith v Scott, the decision of the Secretary of State in laying the Order before Parliament was unlawful and that the Scottish Ministers would act ultra vires by virtue of s.57 (2) of the Scotland Act 1998 by taking steps to promote the election. The respondents argued that s.6 (2) (b) of the Human Rights Act 1998 was a complete defence. Even although incompatible, s.3 (1) as primary legislation was still lawful.
Held: petition refused. (1)Section 11of the Scotland Act was a clear expression of a Parliamentary intention that the normal rules as to the franchise, including the restriction in s.3 (1) of the 1983 Act, should apply to elections to the Scottish Parliament. (2) The Scotland Act should be interpreted in the context of the more or less contemporaneous Human Rights Act. Section 6(2) (b) rebutted any illegality arising from incompatibility if and when a public authority is applying the terms of primary legislation, and was designed to preserve the supremacy of the UK Parliament. (3) The articles of the Order complained of, insofar as they reflect the terms of s.3 and related provisions of the 1983 Act, are giving effect to those provisions, all as allowed by s.6(2)(b). (4) In these circumstances, the common law principle of legality did not arise. If legislation could not be read compatibly with Convention rights, a public authority, including the court, was not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation given the incompatibility. It cannot supersede the protection provided by s.6 (2) (b) in a situation where, without that protection, there would be a clear illegality arising from the terms of s.6 (1) as was explained by Lord Hoffmann in R (Hooper) v Work and Pensions Secretary, [2005]1WL.R. 1681in para.51 of his opinion:
"Section 6(2) was designed to preserve the sovereignty of Parliament." (5) Further s.12 (4) (a) of the Scotland Act did not give the Secretary of State for Scotland any power to disapply s.3 (1) by making an order in relation to the election.
(3) DB v Scottish Ministers, [2007] CSOH 73
Facts: DB, a convicted prisoner, had been recalled to custody from licence. The recall would extend over the period of the Scottish Parliamentary elections on May 3. DB complained that in view of s.3 (1) of the Representation of the People Act 1983 he would be treated as disenfranchised because he would be in prison at that point. DB relied on the decision of the Electoral Registration Appeal Court in Smith v Scott, 2007 S.L.T. 137, as establishing that s.3 (1) was incompatible with Art.3 of the First Protocol. DB argued that, by virtue of s.57 (2) of the Scotland Act 1998, the Scottish Ministers could not exercise their recall powers under s.17 of the Prisoners and Legal Proceedings (Scotland) Act 1993 to recall DB if that would breach his Convention rights.
Held: petition refused. (1)The act of revocation did not fall within Art.3 of the First Protocol. (2) There required to be a sufficiently direct link between the act in question and the alleged breach of Convention right. The word "incompatible" as used in s.57 (2) was intended to connote a mutual intolerance or inherent inconsistency between the act and the Convention right when one is placed with or against the other. That could not be said here.
PRISONS
(4) Potter v Scottish Ministers, [2007] CSOH 56
Facts: p, a prisoner, challenged the lawfulness of the policy of the Scottish Prison Service and/or of the Governor of the prison that a pre-recorded message should be attached to all outgoing telephone calls made by a prisoner, informing the person receiving the call that the call is coming from a prison. The attachment of that pre-recorded message to all outgoing calls is part of a package of measures concerning the making of telephone calls from prisons, put in place by the prison authorities under a Direction.
This was a blanket measure and allowed no exceptions. Only pre-authorised numbers could be telephoned. The petitioner contended that such a blanket policy was not prescribed by law and therefore breached his rights under Art.8. Apart from Art.8, the respondent conceded that, at common law, P had the right to respect for private and family life, home and correspondence. The respondents argued that s.39 of the Prisons (Scotland) Act 1989 and r.54 (2) (b) of the Prisons and Young Offenders Institution (Scotland) Rules 1994, gave both a general and a specific power to issue directions on telephone use by prisoners. P argued that r.54(2)(b) did not provide a basis for anything more than control of telephone use based on reasons of prison discipline and order, and did not extend to regulating calls to family and friends which did not raise any such concerns. In that connection, the use of the pre-authorised number system was significant as it would be likely that only those who wanted calls from a prisoner would get them.
Held: petition allowed and Direction reduced. (1) The question whether the admitted interference with the P's rights was "in accordance with the law" was almost identical to the question which has habitually been asked at common law, namely whether the legislature has given the executive the power to interfere with the civil rights of P in the manner complained of. (2) From the terms of s.39 of the Act, from the Rules and from authority (Secretary of State for the Home Department ex parte Pierson [1998] AC 539, and R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532) the rule making powers conferred by s.39 are limited to the making of rules which have as their object the regulation and management of prisons and (so far as relevant here) the discipline and control of prisoners. (3) The power to make rules for the discipline and control of prisoners permits the making of such rules not only for the purpose of prison regulation and management but also to prevent the commission of crimes, the obstruction of justice, the harassment of victims and other types of unlawful behaviour. (4) Such rules may impinge upon communications with persons outwith the prison, but only where that is necessary for the purposes in s.39. (5) Except where they are necessarily in conflict, the rule making power must be read consistently with fundamental civil rights, on the basis that had Parliament intended to confer on the Secretary of State, or now the Scottish Ministers, a general power to remove or interfere with such rights, it would have said so clearly in the legislation and not used general words. (6) So far as it is possible to do so, the Rules should be read as not going beyond what is authorised by s.39, and therefore were intra vires. In the present case, r.54 (2) was capable of being read as permitting the Secretary of State or the Scottish Ministers to make directions of the type therein set out but only so far as consistent with the above purposes. (7) In so far as the Direction or the policy adopted in relation to prisons is inconsistent with s.39, of with r54 (2) properly so understood, it would be ultra vires. (8) The policy was not permissible on a proper construction of the Rules. If the Rules are assumed to be intra vires, they cannot give the prison authorities greater power than that authorised by s.39. They cannot give the prison authorities power to interfere with the prisoner's right to respect for family life and correspondence otherwise than for the purposes identified in that section and the section was not wide enough to permit this purpose. The section was concerned in substance with issues of discipline and order. (9) There was no merit in the argument that the substance of the telephone calls are not affected by the pre-recorded message. The complaint was about the off-putting effect of the pre-recorded message when the recipient of the telephone call picks up the telephone. Since it was accepted thatArt.8 is engaged, that argument must fail. (10) Whilst the Direction is intended, at least in part, to serve as a warning that the call might be logged, monitored and/ or recorded there was nothing to stop such a warning being given, if necessary by pre-recorded message, without reference to the fact that the call comes from a prison. The respondents made no averments that this would be ineffective and no argument to that effect was advanced.