The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: June, 2009

“Legal loophole” for prisoners closed

While reading this article I was reminded of a story I was told as an introduction to human rights. I hope this post interests readers, it’s certainly a piece that’s close to my heart – it’s Scottish Constitutional law. It’s a sordid tale of broken dreams, misplaced trust in man, drugs and the EC and I found it extremely interesting.

The Scotland Act is a fascinating piece of constitutional law and all Scots should read it — after all it’s the founding document of the fanciest named local authority of them all. The wording can be positively inspirational:

s.1(1) There shall be a Scottish Parliament
(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.

(6) Be willing to trade all the days, from this day to that, for one chance, just one chance, to come back here and tell our enemies that they may take our lives but they’ll never take our freedom*

*There may only be 5 subsections in section 1, I forget.

Well, 1(1) is inspiring at least — you know exactly what the drafter is looking for there. The Act draws directly on the European Convention on Human Rights-there’s no messing about with the Human Rights Act for us Scots. Despite implementing the convention in roughly the same way as the Human Rights Act (another of the new 1997 Labour government’s constitutional reforms) it is not exactly the same in its implementation — the limitation period from the Human Rights Act was missed out. Then, the House of Lords had a look over it, pointed out that actions were unlimited with the draft and it was not corrected. We can only assume that Parliament intended it that way.

Unfortunately this beautiful act of trust in the concept of Human Rights met its natural conclusion with a man named Napier. Napier v Scottish Ministers is the early, Scottish Court of Session case, not Somerville which is the meaty, precedental House of Lords decision but Napier involves drugs and I feel that gives Napier “edginess”.

Robert Napier was locked in a cell with his cellmate of the time, a recovering heroin addict and as everyone who has watched the Scottish tourist board propaganda film “Trainspotting” heroin causes you to become constipated while it is in your system. With a regular habit you can became quite consistently constipated. There was no access to heroin in this cell. The man was no longer constipated.

A very long story (and an even longer night for Napier) later, Napier, who if I recall correctly was in the jail in connection with some fairly violent crimes and should not be considered the innocent victim of this story but nevertheless should be greatly pitied, was left in cell in a Victorian prison with no toilet, a small bucket and a recovering drug addict with diarrhea.

This grim scene, combined with other elements of the Victorian prison system (Scottish jails taught the European prison inspectors something new and they have to deal with the former Soviet bloc) lead to convincing a judge that this amounted to a violation of the pursuer’s article 3 convention rights:

No one shall be subjected to torture or inhuman or degrading treatment

Napier, as a Scottish individual, had two routes to his Convention rights the Human Rights Act and the Scotland Act, both of 1998. One allowed Napier to get damages but the other allowed him to get damages and every other person who has ever had to do their jail business into a pot could equally also, claim damages. There was no limit on how far back the cases would go because of the drafting of the Scotland Act. The Scottish Executive set aside £50 million in a liability fund and even mere to get a toilet in every jail cell as soon as possible. The oversight has been corrected -on the 18th of June 2009. 11 years after the House of Lords pointed it out while the act was still under debate.

I don’t know if you can really call that a loophole at that point, it seems more Parliament’s fault.

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Legal Websites and some thoughts

I believe there are two ends on the online legal resource continuum – sites can be inward looking or outward looking or some combination of the two. With inward looking sites being those intended for people studying, practicing or merely reading about law itself. The outward facing sites are for those affected by legal issues as lay people. The difference, is generally, but not always, simply the amount of evaluation and editorialising that goes on with the content and the approximate degree of separation from the original source material – inward looking resources are used by people who, when it comes down to the nitty gritty, have to tell a tutor, examiner or another professional that the dicta in paragraph X of case Y or that section a(b)(c)(i) of statute Z supports their position better than the other guy. Users of the outward facing sites simply want a reasonably straight forward answer to questions like “can I build a fence in my garden?”

Sites are not entirely one or the other, there’s a definite continuum online, but users of one kind may find themselves disappointed by the other. I quite like the soft edges of outward facing resources to gain a general, big picture analysis of what I should expect to find when I have a look at the source materials – I learned the basic provisions of the Unfair Contract Terms Act through consumer rights education while still at high school. It put me a good position when I studied statutory interpretation in my first semester of first year and needed to make some sense of the quite notorious piece of legislation. I find statutory interpretation very difficult – though not nearly as hard as statutory drafting – simply because there’s so many techniques, some modern and some truly ancient, to help you gain meaning from statute. Let’s not even mention Pepper v Hart which is distilled essence of “more hours researching in the library” wrapped up in a cute case name. Effectively knowing what I’m going to find is a massive crutch that will be awkward if it’s not there but certainly helps if you’re already just finding your feet. That means that reading sites that I’m perhaps not going to cite in my bibliography is still very helpful – the whole concept of academics is based on “standing on the shoulders of giants” and there’s nothing wrong with standing on the shoulders of giants who write in simpler language. Being able to back it up in a more scholarly manner, which generally seems to mean by quoting like a man possessed, is the goal but comprehension is a infinite help in writing an essay.

The ultimate inward facing legal websites are obviously Bailii, HUDOC, Lexis Library, Westlaw and the rest of them – sites that exist to give you access to source materials. The commercial databases do a remarkable amount of what database engineers would call “input sanitising” – Westlaw US checks so thoroughly that it often sends source documents back to the courts that wrote them with errata, for example, but all remain initimately connected with the original text and are fairly hard going for someone without a legal background of some description.

Up from this very source level are sites where there is still heavy reliance on source documents but they are accompanied with editorial content – I particularly like eulaw.typepad.com for this sort of thing.

The next level up are what is effectively the online textbook. I’m actually unaware of anything that I would class in this category which is still very much material for those studying, and perhaps practicing – I was certainly pointed to my textbooks as the basis of a mooting submission and the advice seems very sound – law. I would certainly use it though, so I’d appreciate a pointer for that if any reader can think of one.

Beyond that is a marked distinction into those intended to “simply” provide an answer – the Wolfram Alpha to Westlaw’s Google, if you like. Writing high quality legal reporting at this level is a very different beast which requires a much more reader friendly approach, sites may not even mention the source material or if they do it’s in very vague terms – like the “Sale of Goods Act” (an act with 64 sections and 4 schedules) providing you with “statutory rights”, rather than talking about Part II ss.10-14 adding “implied terms” to “contracts of sale”. These sites are generally very easy and quick to read, and while they don’t really provide the sort of detail you’d get a particularly meritorious mark for at uni they will hopefully settle your legal issue quite straightforwardly. Sites like this are relatively numerous but are generally fairly specific in the material they cover – taking ukecc.net or gardenlaw.co.uk as examples. Consumer advice sites are most helpful, frankly, at this level.

Generally the simpler things are the hardest to write. It’s easy to read out a bit of statute, point to it and say “that’s the law” but it’s unexpectedly difficult to point a statute, decide what’s relevant, what it means in context and then decide if it helps. It’s not a flaw with legislation, it’s just a result of living in a complicated world. The harder material is still extremely hard to write but being able to explain concepts to someone without a background in the particular field – even intelligent people with skills in another field – is a bit of gift. For example I certainly know that a lot of medicine goes straight over my head, even though a reasonable amount of computing and an increasing amount of law won’t, and I need it explained to me in quite small words.

The new rage – heckling at Question Time

Here’s a question – in the olden days, when everyone was busy with spending their oodles of credit and figured that MPs were dirty but hey, we’re all rich together, did anyone heckle Question Time? I’m not the show’s biggest fan or most avid watcher but I can’t remember it happening nearly as often (every week) as it has been recently.  I think it, most clearly this week from Birmingham where a lot of the audience were forced to disclose job links to the car industry, shows that there is a serious lack of opportunities for angry, potentially unemployed people to shout at MPs from the comfort of a warm TV studio. Flippant phrasing? Yes. A gap in the current market? Absolutely, and an important one.

The format of Question Time is great for calmer situations – you have a panel of professional politicians and other speaking heads who sit in front of an audience who ask questions of them. It’s great if all you have is a vague urge to pick a group of people’s brains on a bit of current affairs but, to reveal some underlying ennui, it’s a bit of an insubstantial program at the base of it all, a great deal of posturing, a bit of slap talk and they all say they hate the BNP if it comes up (well, yeah but doesn’t everyone? Only anonymous people on the street get to like the BNP) but it’s not where work gets done. It’s also about the only one that people are invited into. Paxman et al don’t interview in front of a studio audience, certainly not one that can ask questions, and politicians are hard enough to get a hold of even before they’re elevated into positions of extra power. The fabled “MP’s surgery” is a fairly rare event at the best of times and Ministers (the kind of people you want to be able to get a hold of, even just to give them a good shake) may get a regular common or garden MP from a neighbouring constituency to do their surgeries for them, because they’re busy Ministering.

Heckling is a sign of the emotion that’s running through the citizenry. It’s also shockingly out of place in a show like Question Time for a fairly good reason – you can’t actually do much when a member of the audience is shouting out. It’s why stand up comedians have to deal with hecklers quickly and effectively to continue with their set. It’s why there’s a Speaker in the House of Commons. If people are shouting out it means that other people, who are waiting their turn patiently, can’t be heard. It’s rude and it spoils things for other people. That’s the huge, huge downside. The problem is that there’s no other obvious place for people to do this. There needs to be a greater level of public integration with the process – there’s no end of ways to talk to a politician if you’re a lobbyist or retain the services of one or, heaven forbid, you’re a politician yourself but it’s a bit of a black art if you’re not in the right circle. This is really something that needs addressed. I’ve been very impressed with the “They Work For You” site which basically aims to provide a connection between voter and MPs to show what they’re doing with their weekdays and to generally make the whole thing quite convenient, I’ve actually got an email alert set up for whenever Lord Hope of Craighead speaks(1), basically just because you can do that.

This is the sort of thing that’s needed for the current situation – a nice, convenient and personalised route to talk to the elected representatives that are nominally acting on your behalf but are apparently more likely to be huddled under their desk in their second home hoping their moat can keep the Daily Telegraph away.  Routes do exist, but are they well publicised?

The truly hard bitten cynic in me wonders if people who shout out on TV are shouting out… on TV in the same way that, in a period of decreasing church attendance, Songs of Praise always seems to find the really full one every week and in that case, pointing them to surgeries and phone numbers and addresses and other means of meeting and talking to a real politician in a quieter setting won’t actually appeal to them because it’s more effective but it’s not TV but that’s just celebrity aspiration gone mad and I hope that’s not what’s lead to this rise in shouting on Question Time.

(1) Only when he speaks in the House of Lords, obviously.  Not in general.