Can a new broom clean legislative legal advice?

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FOLLOWING THE RESIGNATION of Lord Advocate James Wolffe QC and the promise of new leadership under the new Lord Advocate Dorothy Bain QC, we have a unique opportunity to examine the legal failures of recent years involving both the Scottish Government and those responsible for providing legal advice.

Following access to information requests by Scottish, it turns out the Scottish government spent nearly £ 6million on high-profile legal cases in the years leading up to the May 2021 election. Its responses report found that “An analysis of the cases listed shows that around two-thirds would be considered victories for the Scottish government or decisions in favor of the Lord Advocate.” But that means that a third of the time the Scottish government has been defeated. By extension, questions relating to the quality and nature of legal advice, opinions and judgments from Law Officers (Lord Advocate and Solicitor General) and the Scottish Government Legal Directorate (SGLD) are automatically raised.

Let me start with first principles. How does a bill become law? Well, before a bill can be presented to parliament by the Scottish government, the minister responsible for introducing it must clearly state that it is his view that legislation falls within the legal competence of Holyrood. The relevant part of this process is that the Minister – rarely being specialists themselves – only makes a decision after the advice of the jurists if their bills fall within the legal constitutional limits of Holyrood’s powers.

But when the Scottish government introduced two bills – one on children’s rights and the other on localism – it found itself failing in that process.

The Scottish government has introduced two bills; one aimed at incorporating into Scottish law the United Nations Convention on the Rights of the Child and the other concerning the European Council’s Charter on Local Self-Government (nothing to do with the EU). Interestingly, in relation to these two Scottish Government bills, the Supreme Court of October 6, 2021 ruled that “you [The Scottish Government] draft the legislation as if the constraints of Scottish law did not exist, and you leave it to the courts to deal with issues on a case-by-case basis.

How come the Supreme Court says the Holyrood Bills are drafted to ignore Holyrood’s constitutional jurisdiction? Aren’t Law Officers supposed to advise ministers if their bills fall within the “legal competence of the Scottish Parliament”?

Are there grounds for us to question the precision, accuracy and correctness of the legal advice offered by lawyers and the SGLD to the Scottish Government in recent years?

Yes, there are reasons, and we have the receipts for the court cases that show that this is so. If we think back to the Named Person Scheme (2016), we begin to find the first reasons for concern.

The Named Person Scheme was the Scottish government’s attempt to give every child in Scotland a state appointed guardian. This “appointee” would be a government employee responsible for the “welfare” of every child in Scotland. The Christian Institute has successfully conducted a legal challenge to the legislation, a challenge it resisted through the Outer House of the Court of Session and the Inner House of the Court of Session, until the Supreme Court itself (has the Scottish government lost). He left the taxpayers with a bill of £ 482,266.27 for the charges.

The Supreme Court ruled in 2016 that the Designated Person Act violated article 8 of the European Court of Human Rights (ECHR). The ruling said, “In summary, we conclude that the information sharing provisions of… the law… are incompatible with the rights of children, adolescents and parents under article 8 of the ECHR”.

This is incredible, especially since on February 12, 2014 the Lord Advocate Frank Mulholland QC was warned by the Christian Institute in a letter that “The Christian Institute has received advice from leading lawyers which casts considerable doubt on whether Part 4 of the bill is compatible with article 8 of the European Court of Human Rights

On March 21, 2014, Frank Mulholland QC swept aside these concerns. In his judgment, he had “taken the points raised” but did not consider them “appropriate for reference”. Nonetheless, the Supreme Court in July 2016 would recognize the exact points raised by the 2014 letter from the Christian Institute.

But this is far from the only case where then Lord Advocate Frank Mulholland QC was linked with a questionable legal judgment. Recall the decision to prosecute those involved in the administration of the Rangers bankruptcy in 2015. The former Lord Advocate triggered the prosecution of the ex-president of the Rangers, Mr. Charles Green. Remarkably, the lawsuit has since been ruled by the court as ‘malicious’ – a rare and difficult judgment to obtain – and Mr Green has received £ 6.4million from taxpayers in compensation.

But the Ranger administration fiasco does not end there. Two other men linked to the Rangers under administration, David Whitehouse and Paul Clarke, also received millions from the taxpayer’s purse due to “malicious and unwarranted” prosecutions by the Crown Office during the days when Mulholland was the best dog. Whitehouse and Clarke received £ 10.5million each.

Mulholland’s successor as Lord Advocate James Wolffe QC later admitted he supported calls for an independent judicial inquiry into the fiasco, which will have to wait. Why? Because there are even more claims against the Crown office.

Taxpayers could look down the barrel of more than £ 100million in payments. It is legal expertise on which the Scottish government has relied.

Now you might be thinking “at least he’s not Lord Advocate anymore”, and you would be right. Today he is Lord Mulholland, judge of the High Court, senator of the College of Justice. He landed this position in December 2016.

But it’s not just Mulholland’s past judgment that we should question. There is also the politics of it all – such as the not insignificant case of the Scottish government’s hardline refusal to take legal advice on Alex Salmond’s judicial review of staff harassment. Ultimately, taxpayers had to shell out £ 512,250 by January 8, 2020.

If such appeals for bad judgment coupled with refusals to take legal advice are somehow representative of the cultural functioning of the Scottish Government, Law Officers and the SGLD, is it any surprise that the government has also lost another costly judicial review since then ?

Canon Tom White, pastor of St Alphonsus in Glasgow (among other petitioners), challenged on March 24, 2021 the closure of places of worship by the Scottish government during the lockdown. The judge in this case was Lord Braid, who ruled that the Scottish government did not understand the meaning of Article 9 of the ECHR.

James Wolffe QC, Frank Mulholland’s replacement has since followed his predecessor Lord Mulholland out the door, resigning as Lord Advocate, to be replaced by Dorothy Bain QC.

I wish I could conclude by writing that a new broom cleans, but we’ll have to wait and see.

What can be said is that it is high time to take a closer look at the decision-making of those charged with giving and receiving legal advice to the Scottish Government. Then there is the legal opinion on the same question of competence of the bill given to the Speaker of Parliament, who must also attest to his competence. It must be worrying that every time the Scottish government got it wrong, the Scottish Parliament chief executive made the same mistake when he is supposed to provide a check against government error or enthusiasm.

One thing is certain, the failures of recent years have cost taxpayers millions and damaged the reputation of parliament.


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