When legislation is judged, and found to be wanting

MEMO to Holyrood – there’s a number of people a bit further up the Royal Mile who should know what they’re talking about, and some of your legislation is causing them deep dismay.

Our judges in the supreme courts have never been renowned for sounding off, and certainly not in such consistent fashion, but it seems they are being pushed to the brink. Only a few weeks ago, Lord Marnoch was first to wade in with some pretty damning criticism. He had found himself out of kilter with two appeal court colleagues in the Court of Session while grappling with the intricacies of changes in the law governing care services.

Two sets of bridging arrangements had been introduced for the changeover from the 2001 Regulation of Care (Scotland) Act to the 2010 Public Service Reform (Scotland) Act. A second set had been required because the first was found to be “incomplete”.

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In an appeal from a sheriff court about a children’s nursery facing the loss of its licence, Lord Marnoch read the provisions in a different way to Lord Hamilton, the Lord President, and Lord Drummond Young.

He said: “It is a matter for great regret that the transitional provisions in question have been so framed as to give rise to lengthy argument both before the sheriff principal and before this court and, indeed, to what is now a serious difference of judicial view.

“The result has been to add significantly to both the delay and expense of obtaining resolution of a matter apparently thought appropriate for a summary application to the sheriff. As it happens, it is only four months since I was party to a decision of [the appeal court] in which the court again experienced difficulty in the construction of transitional provisions – in that instance relating to the Adoption and Children (Scotland) Act 2007.”

Lord Marnoch recalled that in another case two years ago concerning the Mental Health Tribunal for Scotland, one of his colleagues, Lord Reed, had felt constrained to remark that it was unfortunate the legislation in question “should be so resistant to ordinary comprehension”.

He added: “I myself had occasion to refer to the ‘severe difficulties’ confronting the court and the apparent lack of even a ‘clear objective’ within the provisions there being considered. Other courts have experienced similar difficulties … the transitional provisions of the Licensing (Scotland) Act presented great difficulty and one of the substantive provisions of the act was itself described as ‘an unquestionably difficult legislative provision’.

“No doubt it is the duty of this court to make what it can of all these legislative complexities, but one must certainly hope that both the Scottish legislature and those who advise it will take on board the extent of litigation which has resulted from them, and the desirability of avoiding similar uncertainties in the future.”

Strong words, but worse was to follow with a declaration by another three appeal judges, this time in the criminal court, that new legislation on bail conditions for suspects breached human rights and was “not law”.

The Criminal Justice and Licensing (Scotland) Act 2010 had introduced as a standard condition of bail a requirement that the person, if reasonably instructed by a police constable, had to take part in an identification parade, or allow fingerprints or DNA samples to be taken.

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Hold on, said Lords Eassie, Brailsford and Osborne, what about article five of the European Convention on Human Rights, the right to liberty and security? The provision took away any judicial discretion and supervision on whether someone should have to stand in a parade or submit samples, they said, and was incompatible “with the rights secured to the citizen by article five”.

In this instance, the provision had been clear enough and easily understood. The difficulty lay in fathoming why it had been conceived in the first place.

As Lord Eassie stated: “The Crown frankly indicated its difficulty in advancing to us any comprehensible reason for the amendment … ”

The reddening of faces at Holyrood would only just have started to fade when Lord Gill, the Lord Justice Clerk, put in his tuppence worth.

He has been a recognised authority on agricultural law since his days at the Bar, and the Agricultural Holdings (Scotland) Act 2003 would not seem to be among his top-ten statutes. In a judgment about farm rents, phrases such as “ill-advised”, “unaccountably omits”, “absurd result” and “inept draftsmanship” gave a flavour of his view.

There does seem to be something of a pattern developing, so the judiciary will be hoping that Lord Marnoch’s plea for “the Scottish legislature and those who advise it” to heed warnings does not fall on deaf ears.

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