Issue 41 June 2008 - Scottish Public Law post-Somerville
Introduction-Do we have a Scottish Public Law?
The recent history of public law in Scotland begins as a case of the tail wagging the dog: a change in procedure (the introduction of judicial review) influencing the development of substantive law: Cue the New Labour agenda of constitutional reform advanced through the Scotland Act 1998, the Human Rights Act 1998 and the Freedom of Information (Scotland) Act 2002, with the first of these presenting the potential for a peculiarly Scots dimension to public law.
If we leave to the side the marginal point that in Scotland we have not confined Judicial Review, as they have done in England, to any technical conception of "public law" (see West v Secretary of State. for Scotland, 1992 S.C. 385), the laws of Scotland and England have to date been similar but perhaps no longer so. Even post-Human Rights Act the foundation of English law remains Parliamentary sovereignty, as Lord Hoffmann explained in R v Secretary of State. For the Home Department ex. p. Simms [2000] A.C. 115 at 131:
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
The essence of the constitutional change effected by the Scotland Act is to be seen in the mirroring observation of the Lord President (Rodger) in the first of the fox hunting cases, Whaley v Lord Watson, 2000 S.C. 340 at 349:
"Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, e.g. even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments. Indeed I find it almost paradoxical that counsel for a member of a body which exists to create laws and to impose them on others should contend that a legally enforceable framework is somehow less than appropriate for that body itself."
This brings more of a legal content to the control of legislative and executive power in Scotland but, as we will see, law has not entirely displaced politics as the ultimate control medium.
2007-an upside down year reflecting learning process
With any new system a period of adjustment and acclimatisation was to be expected and that has been all too evident in the leading cases in 2007.
The Privy Council has delivered a number of groundbreaking decisions since 1998, not the least of them being R v HMA, 2003 S.C. (P.C.21) We now know that case to have been correct in relation to the points that were obiter to the decision (Somerville v Scottish Ministers, 2007 S.L.T. 1113) but wrong in relation to the decision itself (Spiers v Ruddy, 2008 S.L.T. 39). What is more, there is reason to question the correctness of the most famous of all Scottish human rights cases, Starrs v Ruxton, 2000 J.C. 208: see Dickson v HMA, 2008 S.L.T. 12.
What lessons do we take from this?
The Ullah principle
The first point to emerge from the fog has been "the Ullah principle", so called because it was first articulated by Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 A.C 323 at 350:
"In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 A.C. 295, para 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible With a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, Since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
Strasbourg jurisprudence is sometimes difficult to fathom, with decisions often being pragmatic, rather than principled; and even where a line of authority has built up the Court does not necessarily feel constrained by precedent and will unashamedly change course on policy grounds, particularly if it discerns a shift in consensus in European opinion. One example is the case of Goodwin (2002) 35 E.H.R.R. 18, in which the European Court of Human Rights changed the law on the gender recognition of individuals who undergo a sex-change. The Court gave effect to what it called a "dynamic and evolutive approach" to the implementation of human rights, which is not easy to reconcile with our traditional domestic approach to precedent.
Being in step with Strasbourg has both a positive and a negative aspect.
The negative aspect is perhaps easier to state. Our Courts are not expected to get ahead of Strasbourg decisions, so they are unlikely to take decisions to advance human rights beyond the bounds supported by Strasbourg jurisprudence.
The positive aspect is that domestic courts are expected to follow and apply decisions of the European Court, at least where there is a consistent line of European decisions and no conflict with binding domestic authority. A "dynamic and evolutive approach" is potentially at variance with our traditional approach to precedent and hardly surprisingly where the two conflict it is our domestic rule on precedent that should prevail. The Court of Appeal has on one occasion (D v East Berkshire Community NHS Trust [2004] Q.B. 558) successfully decided to apply a decision of the European Court of Human Rights in preference to a ruling of the House of Lords but, as Lord Bingham put it in the subsequent case of Kay v Lambeth London Borough Council [2006] 2 A.C. 465, the scenario was of an "extreme character". The House of Lords decision that was set aside was X v Bedfordshire County Council [1995] 2 A.C. 633 (child abuse victims had no right of action against Local Authority Social Work Departments which failed to adopt child protection measures) but some of those children later succeeded in an application to the European Court of Human Rights in a claim for damages based in part on the failure to provide an effective remedy against the local authority (Z v UK (2001) 34 E.H.R.R. 97). Save in such a clear case of a domestic precedent overruled by Strasbourg, decisions of the House of Lords are to be followed by our domestic courts: Kay v Lambeth London Borough Council
Ruddy viewed in that context-a European minimum standard as opposed to an opportunity to reinforce peculiarly Scottish passion for expedition
Particularly in the case law dealing with the effects of delay in the investigation and prosecution of crime, there has been a suspicion that Scottish judges have used the European Convention as an opportunity to optimise our traditionally stringent approach to delay, that trend reaching its height in the case of R v HMA, 2003 S.C. (P.C.) 21, in which a Scottish majority in the Privy Council held that, in the event of an unreasonable delay incompatible with Art.6, the accused must be acquitted.
Let us diplomatically put to the side the fact that a non-Scottish majority in the House of Lords in Attorney-General’s Reference (No.2 of 2001) [2004] 2 A.C. 72, simply thought R to have been wrongly decided, we can now appreciate (courtesy of Spiers v Ruddy, 2008 S.L.T. 39) that the decision in R was an example of the domestic courts getting ahead of Strasbourg decision-making and fashioning a peculiarly Scottish solution to a problem that in fact called for a Continental approach. Unbeknown to the members of the Judicial Committee that sat in R, in 2000 the Grand Chamber of the European Court had begun to elucidate the precise requirements of a satisfactory remedy for delay. The elucidation process began so quietly in Kudla v Poland (2000) 35 E.H.R.R. 198 that it was overlooked by all concerned in R but over time, as the Court failed to stem the tide of delay cases from Italy, it became ever more increasingly specific to the point that by the time Ruddy came before the Privy Council there were five Grand Chamber decisions consistent with the view that the appropriate remedy for delay is an expedited hearing (perhaps coupled with compensation or a modified sentence) and inconsistent with the view that an acquittal is mandatory.
I suspect that we are all now familiar with the terms of s.57 (2) of the Scotland Act.
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legis1ation or act is incompatible with any of the Convention rights or with Community law."
The emphasis tends to be on the opening clause (''A member of the Scottish Executive has no power ... to do any ... act") because in constitutional terms it is those words which not only spell out that a fundamental restriction is being imposed but also mandate the consequence of an infringement: nullity. However, the subsection is a more complex and ultimately more flexible instrument, with the clue lying in the conjunctive term "so far as". The subsection does not enact an absolute limit on power but rather one that is relative to the incompatibility with Convention rights. One must begin by identifying the nature and extent of the incompatibility with Convention rights and judge the exercise of the relevant power accordingly. No one doubts that an unreasonable delay in the investigation or prosecution of crime is a breach of Art.G, but is it is necessarily the case that the Lord Advocate has no power to proceed after the onset of such a delay? In light of the Strasbourg jurisprudence from Kudla, the conclusion can properly be reached that requiring the
Lord Advocate to stop a prosecution goes too far because, if an expedited nearing would be a sufficient remedy, it cannot be said that to proceed with such a hearing is "incompatible with convention rights".
Standing back, Ruddy can also perhaps be presented as a further example of a point seen more clearly in the case of Potter v Scottish Ministers, 2007 S.L.T. 1019, to which I will refer later. Inevitably cases (be they civil or criminal) will be focused on the rights of the party most directly involved and the arguments tend to be simplified down to the base level of the State versus the individual: in the cases of Ruddy and R v HMA the public prosecutor having breached the rights of the accused to a speedy trial under Art.6. However, the State seldom interferes for the sake of interference. The interference with the rights of one party may in fact be based on the need to promote the rights of others, in which case the proper application of human rights requires that the competing rights be balanced.
Take, e.g. R v HMA. The accused was charged with sexual offences. He has the right to be tried within a reasonable time but his rights are not the only Convention rights engaged by a trial. It has to be recalled that the State is under a positive obligation under Arts 2, 3 and 8 to provide an effective criminal justice system, which requires that persons accused of serious crimes be prosecuted for the protection of the victims of the specific crime and the general community (see, e.g. X and Y v The Netherlands (1986) 8 E.H.R.R. 235). Properly analysed the issue in R was not solely the right of the accused under Art.6 to be brought to trial within a reasonable time but also the balance between that right and the right of his alleged victims and the general public that he be tried and duly sentenced if convicted. While an acquittal is arguably a suitable remedy for unreasonable delay from the perspective of the accused, the problem is that the resultant failure to prosecute is equally arguably a breach of the Convention rights of the alleged victims and the public who are entitled to the protection of an effective criminal justice system. Section 57(2) cannot have been intended to bring about the result that the public authority avoids one breach of Convention rights only at the expense of breaching another. A proper application of s.57(2) of the Scotland Act requires those two rights to be balanced, which can be done by allowing the trial to proceed on an expedited basis with the residual prospect of a moderated sentence if necessary. That balance is achieved by the decision in Ruddy.
The need to strike a fair balance between the rights of the individual and the interests of the community runs through the whole of the Convention: Lord Bingham in R (Razgar) v Secretary of State for Home Department [2004] 2 AC. 368 at para.20. That is so even where the only Convention right engaged is that of the applicant. The need for a proper balance is all the stronger where the State owes conflicting Convention obligations to opposing individuals.
Freedom of Information and Human Rights open public bodies up to scrutiny and put the onus on them to justify decisions challenged by judicial review.
One of the major weaknesses of judicial review is that it is difficult to challenge a decision for which no reasons have been given. This is being addressed by the general trend in administrative law to require reasons to be given for contentious decisions and that has been reinforced by human rights jurisprudence. Assuming a Convention right to be engaged, the onus is on the State (or public body) to justify any interference with it.
Human rights is, of course, a pragmatic discipline so one would not expect the courts to open the floodgates and allow the disaffected to require the State to re-run every decision in open court. There remains a practical onus on the challenger to point to some prima facie troubling encroachment on convention rights. Where the complaint relates to legislative policy choices openly debated in Parliament it remains the case that the courts will recognise a wide margin of appreciation and not cast an onus on public authorities to show something more specific than the terms of the legislation on which they rely: Kay v Lambeth London Borough Council [2006] 2 AC. 465. The same, however, is not the case in relation to administrative policies which have not been the subject of Parliamentary debate. The onus is on the public authority to justify any encroachment on convention rights founded on administrative policy: Huang v Secretary of State for Home Department [2007] 2 AC. 167.
What is the rationale for this distinction? It is no more than this. Respect for human rights does not necessarily dictate a particular answer to any particular question. A range of answers may be equally lawful and, indeed, in some situations a legitimate choice may lie between two opposites. The key is that in making the choice the decision maker should think about the human rights implications and make a decision rationally and proportionately, as opposed to arbitrarily. Where there has been recent -Parliamentary debate the expectation would be that consideration has been given to the proper balance of competing considerations and therefore the assumption is that the legislation strikes a fair balance. There is, however, a lower expectation that competing interests will have been balanced in the formulation of administrative policy and hence a greater imperative to require administrators to expose their decision- making processes to judicial scrutiny in Judicial Review.
A recent Strasbourg example is the case of Dickson v United Kingdom (App.44362/04, December 4, 2007), in which the Grand Chamber held (reversing the decision of the Chamber) that the denial of facilities for artificial insemination was a breach of the Art.8 rights of a long term prisoner whose wife was likely to be too old to conceive naturally by the time of his expected release date. This does not mean that prison authorities must now allow conjugal visits. Rather, the Grand Chamber was not satisfied that the existing prison policy on the topic had been formulated with sufficient regard to the need to balance the rights of the prisoner against the public's expectation of a prison sentence.
“... there is no evidence that, when fixing the Policy the Secretary of State sought to weigh the relevant competing individual and public interests or assess the proportionality of the restriction. Further, since the Policy was not embodied in primary legislation, the various competing interests were never weighed, nor were issues of proportionality ever assessed, by Parliament (see the above-cited judgments in Hirst, § 79, and Evans, §§ 86-89). Indeed, the Policy was adopted, as noted in the judgment of the Court of Appeal in the Mellor case (see para.23 above), prior to the incorporation of the Convention into domestic law." (Dickson at para.83)
Freedom of Information makes a valuable additional contribution because it permits access to background papers shedding light on the factors that have in fact been taken into account and the weight attached to them. That reinforces the requirement, recognised in Tweed v Parades Commission for Northern Ireland [2007] 1 A.C. 650, that in any case in which proportionality is in issue there will be an onus on the public authority not only to explain its reasoning but also to disclose the material on which it is based to enable the court properly to scrutinise the lawfulness of the decision. Difficult issues remain, including the whole question of public interest immunity on which Somerville v Scottish Ministers, 2007 S.L.T. 1113 has just made a start.
Scrutiny of validity of legislation
Thus far there has been nothing peculiarly Scottish. It is when one descends to the specifics of legislation that one sees the most notable constitutional innovation and not just concerning the validity of the legislative product of the Scottish Parliament but also Westminster legislation.
As we have seen, subject to the exception of EU Law, English law remains grounded in the principle of Parliamentary sovereignty. The courts may make a declaration of incompatibility under s.4 of the Human Rights Act but that does not affect parties' rights or the continuing validity of the provision in question (s.4(6)). Hence public authorities do not act unlawfully if they act in implement of incompatible primary legislation (s.6 (2)).
One need not look too far for an example. In Hirst v United Kingdom (2006) 42 E.H.R.R. 41 the European Court of Human Rights held that the blanket ban on prisoners voting In s.3 of the Representation of the People Act 1983 was incompatible with the Convention and in Smith v Scott, 2007 S.L.T. 137 a declaration of incompatibility was pronounced by the Registration Appeal Court and yet history records that the Scottish Parliamentary election proceeded without prisoners having the vote.
Scottish Parliamentary legislation is different. The Scottish Parliament 'may make laws" (Scotland Act 1998 s.28 (1)) but the Act proceeds rather quaintly to say that an Act of the Scottish Parliament "is not law so far as any provision of the Act is outside the legislative competence of the Parliament" (s.29(1)), which embraces Convention incompatibility (s.29(2)(d)). Courts considering the Convention compatibility of Scottish legislation can accordingly go beyond the political act of declaring it to be incompatible to the ultimate legal remedy of declaring it not to be law either from the outset or (under s.l02 of the Act) from some later date to avoid too much administrative confusion.
When the fox hunting challenges went before the House of Lords there were two concurrent hearings, the objective of the English hearing (at least so far as it depended on human rights) was only a declaration of incompatibility whereas in the Scottish appeal (Whaley v Lord Advocate, 2007 S.L.T. 1209) the courts were being asked at their own hand to lift the ban.
These are profound constitutional changes not only bringing a legislature under the rule of law as determined by the courts but also, in s.102, conferring on the courts the ability to temper the normal effect of a ruling of nullity that would ordinarily be retrospective. The court has the power to strike down legislation and to manage the consequences. However, the constitutional innovation does not end there because it is not only Holyrood legislation that is brought within striking distance. Westminster legislation is affected too, though here there is some complexity.
For Holyrood legislation the limit is applied at source, the legislation not attaining the status of "law" if it be incompatible: ss.28 and 29 of the Scotland Act. For Westminster the limit is indirect and of narrower range. The limit comes in through a combination of ss.53, 54 and 57(2) of the Scotland Act and the absence for Scottish Ministers (other than the Lord Advocate in her role as prosecutor) of a defence comparable to s.6(2) of the Human Rights Act that they were acting in implement of Westminster legislation. A Scottish Court cannot directly strike down a Westminster Act on the grounds of Convention incompatibility (Scottish Courts merely having power to make a declaration of incompatibility under s.4 of the Human Rights Act) but to the extent that the legislation requires executive action by the Scottish Government it will be frustrated because "A member of the Scottish Executive has no power" to act incompatibly with Convention rights (s.57 (2)), whether that is done in implement of Scottish or UK legislation. Courts can accordingly frustrate incompatible UK legislation by finding the Scottish Government impotent to implement the legislation in Scotland.
However, as I indicated in my introduction, the rule of law has not entirely displaced political pragmatism.
The Somerville litigation has exposed one limitation and that is that s.57 (2) applies only to "A member of the Scottish Executive" and does not apply generally to Scottish public bodies (such as prison Governors exercising statutory powers conferred on them ex officio). Scottish public authorities are still caught by me Human Rights Act but they (unlike the Scottish Government) have the benefit of the s.6 (2) immunity to implement convention incompatible Westminster legislation.
Of more significance to the constitutional purist, a close look at the arguments in Somerville identifies a subtle reservation of Westminster sovereignty. The arguments in the House of Lords turned on two sections (ss.53 and 54 of the Scotland Act) that have received less consideration than s.57 (2). Looking to s.57 (2) one might think that if
Scottish Ministers have no power to act incompatibly with Convention rights in relation to devolved matters then no incompatible act can occur in relation to any devolved matter in Scotland. At least in theory that is not so because one only gets to s.57 (2) if ss.53 and 54 can be passed. Those sections regulate the transfer of functions from UK Ministers to Scottish Ministers and in short provide that functions transfer only insofar as they are capable of being exercised "within devolved competence"- in other words only if they can be exercised consistently with Convention rights. In theory, therefore, responsibility for Westminster legislation incompatible with Convention rights remains with UK Ministers even if the subject-matter is otherwise devolved. If a UK Minister were to step into the shoes of Scottish Ministers and implement the legislation in Scotland, a Scottish court could only pronounce a declaration of incompatibility. That is the theory, but one must doubt the political expediency of a UK Minister intervening in relation to a devolved matter in order to force through a Convention incompatible measure.
Plainly the Scotland Act and the Human Rights Act are set up to give precedence to convention rights and in Scotland that to some extent subjects Westminster legislation to the rule of law, but even in Scotland the new constitutional model is a compromise.
The objective of scrutiny
It is all too easy to say that there is an ability to subject legislation to scrutiny but more difficult to translate that into a concrete statement on the respective roles of the judge and the legislature. Suffice it to say that in the fox hunting litigation all the judges involved attached profound respect for the democratic process and upheld the legislation essentially for reasons consistent with Dickson v United Kingdom (App.44362/04, December 4, 2007): a difficult choice had to be made by the legislature and, conscious that they were exercising only a supervisory jurisdiction, the courts considered whether the legislature had duly taken into account and balanced the competing Interests, rather than asking whether the legislature had struck the "correct" balance. As Lord Hoffmann so famously put it, rule by law is not rule by lawyers.
But nor is the rule of law an empty gesture. Dickson v United Kingdom (App.44362/ 4, December 4, 2007) is again very much a case in point. Public opinion should not dictate penal policy.
"The Court, as the Chamber, reiterates that there is no place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic forfeiture of rights by prisoners based purely on what might offend public opinion (Hirst, cited above §70). However, the Court could accept, as did the Chamber that the maintaining of public confidence in the penal system has a role to play in the development of penal policy."
We live in an era in which public opinion is influenced by the media and the agenda of special interest pressure groups. Plainly, a premium has now to be attached to the values of tolerance and broadmindedness and it is perhaps no surprise that from time to time court decisions on human rights are derided precisely because the law has come to the aid of the unpopular. However, it must be observed that the courts are not the sole guardians of the unpopular: the duty of tolerance and broadmindedness applies to the legislature, the executive and the Judiciary alike and ought to be mirrored in the whole community's expectations of each of them.
Executive action-Section 57(2) of the Scotland Act: not a peculiarly Scottish Issue and therefore deserving a sympathetic interpretation
Ironically, for all that s.102 permits the court to moderate the retrospective effect of any ruling on the validity of an Act of the Scottish Parliament or subordinate legislation; there is no corresponding power to limit the damage that may result from the retrospective invalidity of an administrative act by the Scottish Government.
Much ink could be spilled on the question whether contravention of s.57 (2) results in nullity and the consequential question of the circumstances in which a court might none the less decline a remedy. This was one point of distinction that the majority in R v HMA sought to draw between the Implementation of human rights in Scotland via the Scotland Act and the model chosen in England which has a more overt discretionary structure:
"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate." (Human Rights Act, s.8 (1)).
It is open to question in light of the decision in the majority in Attorney-General's Reference (No.2 of 2001) [2004] 2 A.C. 72 whether the two regimes are truly different in this regard: to say that it would be unlawful for a public authority to act in a particular manner is no different in practical effect from saying that it has no power to act in that manner. In each jurisdiction, whether the act is ultra vires or unlawful, the consequence should be the same: in all bar exceptional circumstances the Court will retrospectively quash any incompatible executive act. Section 8(1) of the Human Rights
Act may present the appearance of a more liberal, discretionary remedy but that is not how it has been interpreted. In the recent control orders case (Home Secretary v JJ [2007] 3 WL.R. 642) the House of Lords held that the controls were excessive in their duration and quashed them rather than substituting an order of shorter, but lawful, duration (see Lord Bingham at paras 25-28).
The Human Rights Act explicitly regulates both positive acts and failures to act, with some limited exceptions: see s.6 (6). In obiter comments in R v HMA, 2003 S.C. (P.C) 21 both Lords Hope and Rodger doubted whether s.57 (2) of the Scotland Act applied to failures to act. The point did not arise for decision in Somerville (2007 S.L.T. 1113) but it was there in the background to the arguments and it is therefore conspicuous that both Lords Hope and Rodger went out of their way to equiparate acts and failures to act as if there was no distinction in principle between the two. Thus Lord Hope précised the fundamental issue in the case as being whether both the Human Rights Act and the Scotland Act apply where a remedy is sought in respect of a Convention incompatible "act or a failure to act of a member of the Scottish Executive" (para.11). While Lord Rodger (at para.131) exp1ained that the Scotland Act enables a victim to bring proceedings "for something which the Scottish Ministers nave done or failed to do in breach of his Convention rights".
It would seem that their Lordship's doubts in R have been resolved in favour of a more expansive reading of s.57 (2) of the Scotland Act, consistent with s.6 of the Human Rights Act, rendering it applicable to both acts and failures to act.
This occasions little surprise. Plainly the objective of the legislation was to promote domestic implementation of human rights. The Convention not only provides negative' bars to interference with rights (consistent with a prohibition on incompatible acts) but also imposes positive duties to render rights effective (inimical to tolerance of a failure to act). A purposive interpretation of s.57 (2) would therefore suggest that 'act" should be construed as covering both the positive and the negative aspects of the Convention and it would seem that that is what their Lordships have now tacitly recognised.
This leads to a more balanced view of s.57 (2) of the Scotland Act. Inevitably because litigation tends to be presented by the disaffected there has been a tendency in argument for s.57 (2) to be couched as a stringent limit on competence, in a throw-back to the pre-Human Rights Act case law which sought to protect fundamental rights by insisting on a strict interpretation of legislation. Now that the Convention has been incorporated in to domestic law that approach to interpretation is no longer necessary (see Watkins v Home Secretary [2006] 2 A.C. 395, Lord Rodger at para.64) and instead one can approach policy questions more openly by identifying the rights and interests involved and balancing them as required by human rights jurisprudence. Depending on the circumstances, the proper answer to any particular question may require a strict or a broad interpretation of legislation (e.g. invoking s.3 of the Human Rights Act) and therefore one should not approach the issue of interpretation with any pre-conceived standard in mind.
There has been one example of this new approach and it is the case of Potter v Scottish Ministers, 2007 S.L.T. 1019. This concerns the pre-recorded message preceding outgoing telephone calls made by prisoners stating that the call comes from a prison and is being monitored and recorded. Mr Potter contends that the pre-recorded message is an infringement of his rights under Art.8 because he maintains that it restricts his ability to communicate with the outside world. In the Outer House the issue was viewed exclusively from the perspective of the prisoner's rights under Art.8 and the challenge was upheld on the view that the prisons legislation required to be strictly construed and, so construed, it did not warrant the inclusion of the message. The Inner House allowed an appeal recognising that, at least as a matter of relevancy, account also had to be taken of the equal rights under Art.8 of those whom the message was intended to protect: recipients of calls who, if no warning message was given, might be victims of harassment or might make unguarded comments that could be relayed to the authorities (as happened in Dudley v HMA, 2003 J.C. 53). If, so ran the argument, the Scottish Government has a positive obligation to protect the human rights of recipients of calls, then a more liberal interpretation of the prisons legislation might be permissible to authorise the prison authorities to do what was necessary to protect those people. The lawfulness of the message accordingly depends on the proper balance of the opposing rights of the prisoner and recipients of calls, with the correct approach to interpretation being secondary to the question of whose rights take precedence. The case is yet to conclude, so where that balance lies remains to be seen.
Joint activity by UK and Scottish Governments and the approach to vires: XY v Scottish Ministers [2U07] CSIH 45
The need to adopt a purposive perspective operates at the "trans-national level ' as between the two governments, as much as it does to the relationship between the State and the individual.
We have in effect a form of federal government with some matters reserved to the UK Government and others devolved to the Scottish Government. The dividing line, marked out by what is reserved by Sch.5 of the Scotland Act, is in fact poorly defined particularly where two functions interact. Behind the red letter law of the Act there are concordats and, in effect, arrangements for dialogue and compromise. Those have yet to be exposed to scrutiny in court but in one case the Courts have had to grapple with difficult questions concerning the overlap between devolved and reserved matters.
I refer to the case of XY v Scottish Ministers [20071CSIH 45, one of the prisoner voting cases raised in the run up to the Scottish Parliamentary election. Scottish Ministers decided to recall a convicted individual to prison with the consequence that, as a serving Prisoner, he would be disenfranchised under s.3 of the Representation of the People
Act. Criminal justice and prison management are devolved matters but voting is reserved. The prisoner argued that Scottish Ministers were caught by s.57 (2) of the Scotland Act and had no power to hold him in prison because that had the foreseeable consequence that he would be deprived of his right to vote contrary to the Convention (see Hirst v United Kingdom (2006) 42 E.H.R.R. 41). The limit to competence was therefore being applied not only directly to what Scottish Ministers had done in exercise of their own functions (recall him to prison) but also indirectly to the foreseeable consequences, even though those strayed in to reserved matters ruled by Westminster legislation. The prisoner failed in his action. The Court took the view that the true grievance related to the terms of the Westminster legislation, which was valid despite its incompatibility with convention rights (see Human Rights Act s.4 (6)), and that statutory validity was not overcome by indirectly invoking s.57(2).
Plainly that case suggests a pragmatic approach to the relationship between reserved and devolved matters looking to the gravamen of the complaint, rather than an exacting legal analysis of the constituent functions.
Conclusion
To borrow from the European Court of Human Rights we are at the start of a dynamic and evolutive process that could, and should, lead to a distinctive Scots public law built on a fusion of the new constitutional arrangements for Scotland, human rights and freedom of information. 2007 should mark the end of the introductory phase with prominent decisions having provide a clarity on some key points of principle, but the task is now to learn the lessons and begin to formulate a constructive public law responsive to the key objective of producing a tolerant and broadminded society respectful of the rights of the individual while attending to the needs of society as a whole.