Category: Scotland


Scottish adoption law compatible with human right to family life

17 July 2012 by

ANS v ML [2012] UKSC 30 – read judgment / press summary

Another week and another judgment about adoption. This time it is a decision of the Supreme Court about the Scottish family law system. Whereas last week’s post was about a case where children should have been placed into adoption, but were not, this case concerned a mother who opposed an adoption order being made for her child. The mother challenged the legislation which allowed the court to make an adoption order without her consent, arguing that it was incompatible with her Article 8 rights to private and family life. However, the Supreme Court ruled that there was no breach of the Convention. 

The appellant mother argued that s.31 of the Adoption and Children (Scotland) Act 2007 was incompatible with the Convention. This would mean it was unlawful, as statutory provisions incompatible with the ECHR are not within the legislative competence of the Scottish Parliament under s.29(2)(d) of the Scotland Act 1998. (This is different to the UK Parliament in Westminster, which is able to legislate contrary to the ECHR, and the most the courts can do under the Human Rights Act is make a declaration of incompatibility.)

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Catholic midwives must continue indirect role in abortions, despite human rights protections

6 March 2012 by

Brought to you by Andrew Tickell

Mary Teresa Doogan & Concepta Wood [2012] CSOH 32 – Read judgment

“For the want of a nail, the shoe was lost, for the want of a shoe the horse was lost, for the want of a horse, the rider was lost, for the want of a rider, the message was lost, for the want of the message, the battle was lost, for the want of the battle, the kingdom was lost, and all for the want of a horse shoe nail”.

A proverbial lesson in causation, and one pressed into service by Lady Smith in the Court of Session in Scotland last week, in a judgment rejecting the judicial review petition of two Catholic midwives employed at a major Glasgow hospital.

Seeking review of Greater Glasgow and Clyde Health Board’s rejection of their grievances, the pair contended that the conscientious objection provisions of the Abortion Act 1967 – which provides that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection” – was not limited to ‘direct’ participation in abortions, but entitled them to refuse to delegate to, supervise or support staff on their labour ward who were directly involved in medical terminations. Horse shoe nail.

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Scottish bail conditions breach human rights to liberty, rules Scottish court

10 February 2012 by

Brought to you by Andrew Tickell

Cameron v. Procurator Fiscal [2012] ScotHC HCJAC_19 – Read judgment

Amongst Scots lawyers, few judicial observations are more notorious than those uttered by Lord Cranworth in the House of Lords in Bartonshill Coal Co v Reid in 1858.  “If such be the law of England,” he said, “on what ground can it be argued not to be the law of Scotland?” Today, in a United Kingdom further complicated by the asymmetric devolution of the 1990s, it isn’t unusual to encounter a Cranworthy combination of perplexity and indifference amongst English lawyers when it comes to the structure and implications of devolution elsewhere in these islands.

On one level, this is perfectly understandable.  Devolution is a matter for the Welsh, Northern Irish and Scots, the proposition runs. Let them get on with it. For those of us interested in the developing constitution, human rights and judicial review, weary of re-reading hand-me-down copies of Dicey, this inattention is to be regretted. The emerging body of litigation around devolution, and the powers of devolved institutions, is producing some of the most interesting “constitutional” cases in Britain today.

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“Sons of Cadder” – Supreme Court rulings on legal advice during police interviews

24 November 2011 by

Jude and others (Respondents) v Her Majesty’s Advocate (Scotand) [2011] UKSC 55 – read judgment;  McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent) [2011] UKSC 54 – read judgment

In these two cases the Supreme Court has considered whether  the failure to take up on  legal representation during police interview amounted to a waiver of the right of access to legal advice for the purposes of determining whether the trial had been fair.

Both cases involved detention of individuals which had taken place prior to the decision of this Court in Cadder v Her Majesty’s Advocate [2010] UKSC 43 (see our post)  and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials.
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Self-incrimination and the fruit of the poisonous tree: the Cadder rule

7 October 2011 by

Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M [2011] UKSC 43 (6 October 2011) – read judgment

Reliance on evidence that emerged from questioning a person without access to a lawyer did not invariably breach the right to a fair trial under Article 6. The principle established by Salduz v Turkey (36391/02) (2009) 49 EHRR 19 did not apply to questioning outside a police station.

The Supreme Court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under Article 6. We posted previously on another referred case,  Cadder (Peter) v HM Advocate (2010) UKSC 43, where the Court followed the Strasbourg Grand Chamber decision in Salduz that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial. The difference here was that  the evidence had been obtained by questions put by the police otherwise than by questioning at a police station. The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz, applied only to questioning which had taken place when the person had been taken into police custody.
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The power of unelected judges – Part 2 of 2

30 May 2011 by

Updated x 2 | Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts. Part 1 is here.

Meanwhile, north of the border in Scotland, a more significant constitutional storm may be brewing following Wednesday’s decision of the UK Supreme Court in Fraser v Her Majesty’s Advocate. Rosalind English has already posted on the ruling, which related to a Scottish murder appeal. As Rosalind said,

this was a Scottish criminal case and the Supreme Court would normally have had no business dealing with it … The Supreme Court’s appellate jurisdiction extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.

Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.

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The power of unelected judges – Part 1 of 2

30 May 2011 by

Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.

Starting with the Sharon Shoesmith decision, which has been helpfully summarised by Obiter J. The Spectator reports that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “recognises that Balls blundered in the way he dismissed her“,

he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.



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Case comment: Cadder – Presence of a lawyer at police interview required by Strasbourg rights of defence

28 October 2010 by

Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 Read judgment

We  posted earlier on the Supreme Court’s ruling that  an accused person’s rights under Article 6 of the Convention are breached if the prosecution leads and relies on evidence of the accused’s interview by police, if a solicitor was not present for that interview.   Indeed Lord Hope thought it “remarkable”  that

until quite recently, nobody thought that there was anything wrong with this procedure. Ever since ..1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption.
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Scots six hour detention without access to lawyer breached human rights convention

26 October 2010 by

Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 – Read judgment / press summary

The UK Supreme Court has ruled unanimously that Scottish criminal law, which allows a person to be detained and questioned by the police for up to six hours without access to a solicitor, breached the European Convention on Human Rights. The decision will not allow closed cases to be reopened but will affect cases which have not yet gone to trial.

The court ruled that whilst the Scottish High Court’s decision was entirely in line with previous domestic authority, that authority cannot survive in the light of the Grand Chamber of the European Court of Human Rights’ decision in Salduz v Turkey (2008) 49 EHRR 421 and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right.

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Scottish and Northern Irish Human Rights Commissions express joint concerns on Bill of Rights

5 April 2010 by

The Scottish and Northern Irish Human Rights Commissions have issued a joint statement responding to the Conservative Party’s plans to repeal the Human Rights Act and introduce a British Bill of Rights.

Professor Alan Miller, Chair of the Scottish Human Rights Commission (SHRC), is quoted on their website. Interestingly, he makes the link between the HRA and devolution for Scotland: “The Human Rights Act in combination with the Scotland Act is an important pillar of devolution for Scotland. Rather than needing to be repealed it needs to be progressively built upon in Scotland.” Justice, a Human Rights organisation, made the same point on devolution in a recent report.

Professor Monica McWilliams, Chief Commissioner of the Northern Ireland Human Rights Commission said: “Nowhere in the world has the repeal of existing human rights protections been a starting point for discussing a proposed Bill of Rights.”

Read more:

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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