The UK Supreme Court has today over-ruled Scotland’s highest appeal court in two important human rights cases.
In both, judgments passed in Edinburgh were unanimously overruled by a five-judge panel sitting in London on fundamental legal issues.
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Their decisions raise the possibility of another judicial and political cross-border row. Senior political figures such as First Minister Alex Salmond and Justice Secretary Kenny MacAskill have already raised concerns about what they see as the Supreme Court interfering in Scottish legal affairs.
The Supreme Court bench in both cases was headed by Lord Hope, deputy president of the London-based court and a former Lord President of the Court of Session in Edinburgh.
He has previously spoken out against the "corrosive anti-English sentiment" in Scotland's courts, describing it as an obstacle to legal progress, and has been the subject of biting criticism by Mr Salmond, who accused Lord Hope of allowing “some of the vilest people on the planet” to win compensation from the taxpayer.
One of the new cases involved the first time the Supreme Court had been asked to consider the Mental Health (Care & Treatment) (Scotland) Act 2003, and the right of a patient in non-state or psychiatric hospital to appeal the level of security imposed on them.
The Supreme Court has now ruled that the Scottish Government has been acting illegally since May 2006. This is as a result of the failure of the various administrations over the past six years to pass enabling legislation.
The decision is a constitutional “first” in Scotland, as it has never before been held in this country that Ministers were bound to bring statutory provisions into force.
The principal solicitor in the case for the appellant was Frank Irvine of Frank Irvine Solicitors, Glasgow, acting for a patient at Leverndale psychiatric hospital in the city.
He has been compulsorily detained in Leverndale, which is not a state hospital, since 1995. He believes he is detained in conditions of excessive security and that his quality of life, his liberty and his prospects for release would be improved were he to be transferred to an open ward.
Mr Irvine said: “Clearly this ruling is to be welcomed not just for our client but for the many individuals who have been denied a right of appeal enshrined in law and passed by the Scottish Parliament.
“It is clearly the case that the absence of this particular right of appeal has had a detrimental impact on many individuals progress from hospital into the community.
“It is to be hoped that the Scottish Government respond immediately to this ruling passing the relevant Statutory Instrument to allow all individuals detained within locked psychiatric facilities the right of appealing their current level of security.”
In the other case, the Supreme Court looked at the case of a man who was seeking human rights redress after being arrested by two Strathclyde Police officers and allegedly abused, threatened with violence, and assaulted by them in 2004.
He sued the Chief Constable, and the matter was referred to the police complaints branch and the procurator fiscal. When no action was taken, the man raised an unsuccessful action at Glasgow Sheriff Court and then appealed in vain to the Court of Session in Edinburgh.
Scottish judges said his appeal was not competent because he had brought forward two separate issues: the action for alleged human rights violation, and his belief that the matter had not been properly investigated.
However, the Supreme Court rules today: “As the Court of Session is to a large extent the master of its own procedure, the Supreme Court will always be reluctant to interfere with (its) judgment on a question of competency unless the judgment is wrong in principle. Regrettably, however, that test is satisfied in this case.
“The objections to the competency of the two claims are unsound in principle. It is clear that the wrongs which are the subject of the appellant’s claims are separate and were committed at different times by different people. But the appellant is not asking for a decree for the respondents to be found liable in a single lump sum. The objection to the competency of the action on this basis is misconceived.
“It is possible to imagine cases where an objection to competency could be taken on the ground that the pleadings defeat the ends of avoiding undue complexity and keeping good order in litigation. The guiding principle when such an objection is taken is whether the way the action is framed is likely to lead to manifest inconvenience and injustice.
“In this case the appellant’s two claims, although separate, are interconnected in law and in fact, and it would be in the interests of justice and more convenient for them not to be separated. The pleadings are not unduly complex and good order in litigation favours the two claims being heard together.”
Both cases will now be passed back to the Court of Session as appeals.