Clarifications needed over UK clarifications!

This post is by Dr Jonathan Fitchen.

The UK’s recent attempt to begin to clarify its position during the Brexit negotiations concerning the future role, if any, for the ‘jurisdiction’ of the Court of Justice of the European Union (CJEU) in the UK post-Brexit is overdue. The UK Government has allowed the other 27 Member States of the EU and the European Parliament to effectively set the agenda for the entire Brexit negotiations. Now the UK is trying to vary that agenda by arguments advanced in several position papers. Among the issues dealt with by these position papers is the UK’s wish to end the ‘jurisdiction’ of the CJEU over the UK and its laws: this post is concerned with this issue and the UK’s position on CJEU ‘jurisdiction’

The CJEU ‘red-line’

Whether one is (or was) for or against Brexit, the UK’s red-line position concerning the CJEU has been confused and confusing ever since Prime Minister May indicated that she interpreted the Leave vote to mean (in part) that we had to, ‘… bring an end to the jurisdiction of the European Court of Justice in Britain’. The confusion arose not only from the perplexing use of the term ‘jurisdiction’ to describe the very limited opportunities for the CJEU to exercise any influence over ‘British’ laws while we are members of the EU, but also from the glaring contradiction in professing this wish while planning to ‘cut and paste’ vast swathes of EU law (including the majority of the decisions of the CJEU) into domestic ‘UK’ laws such that only the UK’s Supreme Court could even hypothetically contemplate a post-Brexit overruling of a CJEU decision within the UK. It seems very strange to try to escape something that no lawyer would regard as an existing CJEU jurisdiction over UK law and courts by compelling every ‘liberated’ UK court (except the UK Supreme Court) to then follow slavishly pre-Brexit CJEU decisions.

The UK sought to resolve one aspect of this confusion in its 13 July policy paper ‘Converting and Preserving Law’ (PDF) on the intended Repeal Bill; this indicated (sensibly) that the Repeal Bill would not compel UK courts to follow CJEU rulings, but would instead allow them to take CJEU decisions into account in reaching their own decisions. This clarification has however been undermined by the publication of the UK’s ‘Enforcement and Dispute Resolution’ paper on 23 August which (at paragraph 45) repeats that decisions of the CJEU will have the same status as decisions of the UK Supreme Court (i.e. will bind every UK court other than the Supreme Court).

Clarifying the ‘jurisdiction’ of the CJEU?

The August position paper additionally tries to resolve uncertainties including those arising from the UK’s political soundbites concerning the end of the so-called ‘jurisdiction’ of the CJEU in Britain. What does jurisdiction mean? At its simplest, ‘jurisdiction’ (understood about a court) defines aspects of that court’s lawful power to act: if the court has no jurisdiction it cannot act and must reject the case. Thus, can a given court hear a case valued at £3,000 or less? Can a given court entertain a given type of case? We would not wish to send cases on technical aspects of construction law to a court specialising in family law matters (etc.). A further type of jurisdiction concerns the types of actions or procedures that may be brought before a given court. With the greatest of respect to those who have clamoured for the end of the so-called jurisdiction of the CJEU over ‘British’ law (i.e. the different laws of England and Wales; Scotland; and Northern Ireland), the Member States have never given the CJEU an independent ability to act in relation to the application of any law by a Member State court. The most that can be said in this respect is that if (and only if) a court in a given Member State decides to ask the CJEU to clarify the interpretation of an aspect of EU law which clashes with a principle of domestic law, the decision of the CJEU on this matter will be binding on all Member State courts. It is important to notice two further points; first, the CJEU might decide that there is no clash and dismiss the application without affecting domestic law at all, second, it is always for the national court to apply the CJEU’s decision to the facts of the case. At no point have the EU’s Member States given (nor wished to give) the CJEU any independent jurisdiction over their domestic laws.

The post-Brexit direct jurisdiction of the CJEU

When the UK leaves the EU, it will naturally no longer be possible for the UK’s courts to refer questions of law to the CJEU because the UK will not be a Member State; this is elementary and therefore raises the question of what does the UK mean by ending the ‘direct jurisdiction’ of the CJEU? This is the clarification offered by the August position paper. The UK wishes to end the ‘direct jurisdiction’ of the CJEU in Britain post-Brexit. It may be that this is an attempt to indicate that the UK is willing to entertain some future ‘indirect’ role for the CJEU in its laws post Brexit (there might be some negotiating value in attempting such a gambit in certain situations). That said, the main aim of the UK’s position paper appears to be to try to dislodge the CJEU from playing any role in the administration or interpretation of the withdrawal agreement or its contents: this UK wish is understandable, but comes very late in the day and long after the EU’s agenda documents have been published (complete with significant default roles for the CJEU at various points in the Brexit processes).

Other options than the CJEU, the EFTA court

The UK rightly suggests that there are viable post-Brexit alternatives to relying on the CJEU to administer the withdrawal agreement or to police matters involving EU citizens’ rights (which the UK argues the domestic courts in the UK can adequately protect). The UK’s position on this matter seems instinctively correct: how can the UK leave the EU but still somehow be involuntarily subject to its laws? The EU’s default negotiating position on these matters is thus open to objections based on political reality and sovereignty. These arguments have been noticed by even current and former judges of the CJEU. (Strong criticism of the EU negotiating position on attempting to continue EU law and CJEU influence in the UK post-Brexit has been expressed by F. Dehousse (former CJEU judge for Belgium), and on 9 August The Times reported (£) that Koen Lenaerts (the President of the European Court of Justice) suggested the EFTA court could resolve withdrawal agreement or other disputes between the EU and UK post Brexit. That said, the EU’s default position does allow for the possibility of a different court/body than the CJEU acting in some circumstances to regulate post-Brexit UK EU relations. One difficulty is that the UK has left it very late to engage with the EU on this matter: The countdown to 29 March 2019 (two years after the triggering of the Article 50 EU exit mechanism) ticks away. A further difficulty is that the UK seems quite lukewarm in its position paper to the obvious judicial alternative to the EU’s CJEU, the EFTA court. (An overview of the EFTA court as an option can be found here.) As a rule in negotiations it is a bad idea to offer an objection to an agenda item without a viable ‘plug-in-and-play’ solution. A further potential risk of attempting to entirely dislodge the CJEU from the Brexit process is found in Article 218(11) TFEU:

‘A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties.’

If the CJEU is asked such a question, and then renders an adverse opinion, the agreement cannot enter into force unless it is amended. Article 218(11) has seen the EU prevented from joining the European Convention on Human Rights by the CJEU because of the inevitable demotion of the Luxembourg based CJEU in any Human Rights case potentially heading to the Strasbourg Human Rights Court (per its Opinion 2/13 of 18 December 2014). The UK should be careful that, having triggered the countdown to departure from the EU and having been out-manoeuvred by the elephantine EU in setting the agenda, it does not then so focus on bypassing the CJEU as to accidentally create a withdrawal agreement that the CJEU can de-rail via Article 218(11) TFEU leaving us dangling over a Brexit cliff-edge on 30 March 2019.

Some Scottish perspectives on land reform in South Africa

This is a blog post by Malcolm Combe, reflecting on a recent research trip to South Africa. The role of the Schools of Law at the University of Aberdeen and the University of Stellenbosch together with the financial support of the Carnegie Trust for the Universities of Scotland played in making that trip possible is acknowledged and further explained below.

In blogging parlance, please note this is a “long read”.

Introduction – Scottish and Personal Perspectives on Land Reform

Towards the end of its first parliamentary term, the Scottish Parliament passed the Land Reform (Scotland) Act 2003. This statute sought to broaden access to land in Scotland in two ways: in the sense of liberalising the law relating to outdoor access; and in the sense of giving some communities the right to acquire land in certain circumstances.

This legislation has been important for many people in Scotland. I suppose I am one of those people, but not in the sense that I have used it to acquire land or brought a test case to demarcate the limits of the right of responsible access. Instead, I find that I have written about it. A lot. This trend began when I was searching for an undergraduate LLB dissertation topic (in 2004). This post effortlessly evidences that the trend continues. I suspect I will write about it and the wider topic of land reform again. There are worse vices than writing about land law reform, I tell myself.

In writing that dissertation, it quickly became clear to me that land reform was not a peculiarly Scottish issue. Whilst it might be just about possible to offer an opinion on land matters in any given place by simply looking at that place, adopting such an approach restricts the scope of a study somewhat. Another thing that became clear was that it would be nigh on impossible to compare Scotland to every other legal system that also regulated land. This meant I had to whittle down my comparator jurisdictions a bit. Taking guidance from Scott Wortley (now at the University of Edinburgh, but then at the University of Strathclyde and also my dissertation adviser), South Africa was proposed as a prime candidate.

My dissertation ultimately became a critique of the new community rights to buy found in Parts 2 and 3 of the Land Reform (Scotland) Act 2003. The dissertation looked both at the “blackletter” of the law and whether the 2003 Act could meet its stated policy goals. The research associated with the dissertation involved building on my existing knowledge of Scots land law and policy, whilst undertaking a desk-based and Scots law library-based study of South Africa.

With the online and library resources I had access to, I sought to gain any insight I could. (I found the book Land Title in South Africa , by Carey Miller with Pope (1999) particularly useful, then I was fortunate to work with Professor David Carey Miller in later years.) Several features of South African law were of particular relevance to my study. For example, I read of South Africa’s Communal Property Associations Act 28 of 1996, which gives communities a means to associate together to hold land. This was directly in point to my consideration of community rights of acquisition, allowing me to highlight the more flexible approach South Africa had for community bodies that could own land.

I also considered South Africa’s history, its new Constitution, and its programme of land restitution. These considerations were undeniably interesting, but not particularly useful to my immediate task. In fact, a chapter in a wide-ranging Scots/South African comparative study, it was noted by Professors Reid and van der Merwe that a comparison on these matters highlighted “difference and not similarity” (in Zimmerman, Visser and Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) – more will be said about the similar legal systems below).

In relation to the specific researcg for my dissertation, much of my interest in wider South African land reform was necessarily put on the back-burner; something to come back to at a later stage. This research trip to South Africa gave me a chance to return to the issue, in the company of experts in South African law, with South African resources to hand, and indeed with a South African context to experience for myself. This post now offers some raw and eclectic thoughts about the trip. (I have also offered some thoughts on another aspect of my trip, where I had a cursory but instructive look at the Stellenbosch Legal Aid Clinic, which is available here.)

I should acknowledge that there are some things that this blog post will not cover. For example, this post will not seek to explain what makes for effective land reform. Nor will it directly set out how recent Scottish land reform laws are framed or operate: other resources are available for that (including on this blog). Attention is now firmly shifted to South Africa, but Scottish observations will be made where South Africa offers a suitable comparator. I should also declare that my observations on South African matters are offered with due deference to existing treatments of land reform by South African scholars (notably Pienaar, Land Reform (2014), and the already mentioned Carey Miller with Pope). Please also note that a complete analysis of the changing nature of land law since the end of apartheid will not be attempted here, to ensure this post remains (close to) a manageable length. This means the coverage will be selective at times, although further reading will be identified where appropriate. There are also some notable omissions from my South African coverage. For example, I say nothing here about national parks, although I can shield myself from accusations that I copped out of this topic by steering people to this post over at my personal blog. Another area not addressed is abandonment of land. This is not because the topic is uninteresting or uncontroversial: a forthcoming paper in the South African Law Journal by Richard Cramer, a PhD candidate at the University of Cape Town, will demonstrate that adeptly. It is also a topic that merits study from a Scottish perspective, and I am writing a paper of my own on it. That will follow in due course.

Enough scene-setting. Time for the meat of the post. (Which reminds me, one important lesson that I learnt on my trip is many South Africans like meat. The braais are amazing. Anyway, I digress…)

South Africa – constitutional land reform?

It is difficult to know where to begin in South Africa’s land reform story, but the 1990s offer a starting point with a certain logic. In 1994, the first multi-racial elections in South Africa brought Nelson Mandela’s political party (the ANC) to power and him to the office of President. This heralded a new political era and the end of the overtly racial system of apartheid that had influenced so much law and policy in that country, albeit that process was set in train by negotiations followed by an earlier interim constitution, then put firmly on a constitutional law footing when The Constitution of the Republic of South Africa came into effect on 4 February 1997.

Whilst aspects of the South African Constitution are unavoidably functional, other aspects are far from dry. The Preamble is simultaneously reflective, inspirational and pragmatic. Its words can be narrated in a compelling and captivating manner. (Incidentally, the American musician and spoken word performer Henry Rollins has done just that: I happened to attend one of his shows in Edinburgh when he diverted into a breathless, ranted appreciation of the Constitution. Footage of this from another show is available on YouTube.)

Chapter 1 then sets out the founding provisions, including section 1’s explanation of the basis on which the sovereign, democratic state is founded (including: human dignity; non-racialism and non-sexism; and supremacy of the constitution and the rule of law). Chapter 2 contains the Bill of Rights, which “affirms the democratic values of human dignity, equality and freedom” (section 7). Section 25 then provides constitutional protection for property. It is that “property clause” that is of most interest to land lawyers, and which kept coming up in my research about contemporary South African law. That is not to say other aspects of the constitution are not important more generally, or indeed specifically in the context of land. For example, a recent law on communal land ownership was struck down by the Constitutional Court because parliamentary process as mandated by the Constitution had not been properly followed. There are also provisions about cultural life and the environment that are important in the context of land. Section 26 on housing, and specifically the right not to be evicted without a court order (which will be returned to below) also merits attention. That notwithstanding, the property clause is the most sensible place to start any consideration.

Whilst the nine subsections of the property clause must be read together for a full picture, it is worth noting that it begins by providing that:

No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

It then clarifies:

Property may be expropriated only in terms of law of general application: a. for a public purpose or in the public interest; and b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

Property clauses in other constitutions or similar rights documents (such as the European Convention on Human Rights) also make similar provision for the protection of property, but what is striking about the South African Constitution is it then goes on to say, “For the purposes of this section… the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.” This is a constitutional order that puts land reform in the foreground. (Those who wish read more should seek out A J van der Walt, Constitutional Property Law (3rd edition, 2011).)

For its Constitution alone, South Africa is worthy of study. This relatively young Constitution is already a crucial consideration in terms of who should control, manage and use land in that country. According to van der Merwe, Pienaar and Du Waal (writing in the Kluwer Law International publication South Africa which is part of Property and Trust Law in the International Encyclopaedia of Laws series, 2015), “The South African law of property has been the realm of South African law that has been most affected by the new South African Constitution.” Important as it is, the property clause of the Constitution did not sweep away the legal system that regulates the country’s land, nor did it instantly change who owned what at the time it came into force. This means an understanding of the manner in which the country developed, featuring waves of European migration following the establishment of a Dutch trading post at what is now Cape Town and subsequent incorporation into the British Empire, is important to understanding the legal migration of Roman-Dutch law that also occurred.

This also goes some way to explaining why a Scots lawyer does not feel wholly uncomfortable commentating on that legal development. This is not because Scots law migrated to the Cape. Rather, the Roman-Dutch law of the province of Holland went to the Cape, and then that law was flavoured by aspects of English law (English law being the system that followed the British Empire to its outposts). The mixture that emerged from this clash of legal traditions leaves an underlying property law system that is (or at least was) more familiar to continental European – or civilian – eyes than Anglo-American – or common law – eyes. Meanwhile, the Scottish system of land law draws heavily on Roman law, and whilst it too has been influenced by English law (owing to a shared legislature from 1707 and much in the way of shared experience and trade) its land law also remains somewhat civilian.

This coincidence might be useful for legal research purposes. However, as already noted, the new order that is emerging in South Africa – with its written Constitution featuring an explicit declaration that land reform is in the public interest, and recognition of customary or indigenous rights – demonstrates a trend that is not replicated in Scotland. It can also rightly be said that the conditions faced in South Africa, which exist because of a discriminatory framework, are unique (Pienaar, 2013). This lingers in a socio-economic situation that is very different to Scotland, a number of which I set out in this post about addressing access to justice via student law clinics (and specifically the Stellenbosch Legal Aid Clinic). As a result, comparisons are necessarily tentative and land reform solutions and mechanisms are not automatically transplantable. One comparison that can be made, however, is the simple fact that both jurisdictions have recently legislated for land reform. Some recent South African statutes will now be considered, alongside some new measures that have been proposed.

Legislation

The legislative instruments that supported the apartheid regime are too numerous to mention here. For context, the Apartheid Museum in Johannesburg displays a number of laws that were instrumental in that regime, as this amateur photo demonstrates (taken when I visited there).

Apartheid Museum Laws

To digress for a moment, at the ticket desk for the museum each visitor was allocated a “white” or “non-white” ticket.

Apartheid Museum Ticket

As you can see I was allocated a “non-white” ticket (which under the old rules could have meant I was one of many classifications, all ranking below white to a variety of degrees). This allocation meant I could only use one of the two entrances. As such I could not see the displays accessible via the other entrance (before all visitors were funnelled back together). I felt excluded. I guess that was the point…

Anyway, back to those statutes. Many of those related to land, in terms of regulating who was allowed to own land in certain areas, or indeed allowing people to be forcefully removed. Mandela’s Long Walk to Freedom has numerous instances where such measures take centre stage, from the Group Areas Act 14 of 1950 and its successors (which Mandela notes that Daniel Malan described as “the very essence of apartheid”, and which features on the wall in the Apartheid Museum), to the clearing of Sophiatown (one of the oldest black settlements in Johannesburg). There were also older measures like the Natives (Urban Areas) Act 21 of 1923, which prohibited new freehold townships, and of course the Black Land Act 27 of 1913, of which Sol Plaatje famously noted that Africans awoke the morning after its passage to find themselves pariahs in the land of their birth. The importance of all these steps to the overall land question has been judicially recognised, in the case of Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others [2015] ZACC 253. There, the South African Constitutional Court noted (at paragraph 2) ‘For decades restitution of land was the rallying point for the struggle against colonialism and apartheid. Regaining land ownership was the primary object of that struggle.’ (It then noted (at paragraph 3) that it was “not surprising that the Constitution guarantees land restitution and reform.” I will return to the Constitution in a moment.)

To paraphrase Carey Miller, such measures bolted onto the existing system of property law. That Roman-Dutch system was not in and of itself racist, but it was absolutist and put the holders of property rights in a strong (private law) position. If only certain people could access those rights in certain areas, only they could be in that strong position.

Fast forwarding to the modern era, racial statutes were repealed by the Abolition of Racially Based Land Measures Act 108 of 1991, but that step did not immediately undo the consequences of those measures. Meanwhile, even with their repeal it is not possible to ignore them. The consequences of some legal measures remain important, not only because they have influenced who might be owner now, but also because some of them (for example, the 1913 Act) are important in establishing who might have a claim to the restitution of land.

Back to the constitution, and related laws

The importance of the Constitution for land reform has been touched on already in this post. It mandates three broad ways in which land reform is to be achieved: restitution, redistribution, and tenure reform.

Restitution

Restitution will only be mentioned quickly here, not because it is not important, but (selfishly) because it is not important to the reform exercise that has taken place in Scotland. Some instructive observations can be made though.

By restitution, I mean “returning” property to someone (or someone’s descendants) where a previous act of expropriation that affected them can be traced. Whilst this may sound simple, there are a variety of factors to consider, not least the fact that the person who owns land in the present day may have had nothing to do with the original expropriation. There may also be issues of prioritising which wrong needs to be rectified: for example, Mandela himself notes the iMfecane (alternatively spelled as Mfecane or referred to as the Difaqane) left displaced people as refugees in the area where he grew up in the Transkei, even before you get to the upheavals caused by the British or the Voortrekkers. There may even be issues of competing claims.

Various jurisdictions have grappled with these issues and adopted a restitutionary approach to land reform, including in Eastern Europe and in other parts of Africa. Scotland has not adopted such an approach. South Africa has. It first did so via the Restitution of Land Rights Act 22 of 1994, whereby claimants had to identify an act of dispossession that occurred after 19 June 1913 before restitution could take place. Any dispossessions from before that date leave those affected relying on other aspects of the wider reform program (discussed below). There was also a time-limited period in which claims could be made.

The merits of such cut-off dates can be debated. I will not do so here. I will however quickly note that there may be more restitution legislation in the pipeline, as a result of a decision of the Constitutional Court which declared that the Restitution of Land Rights Amendment Act 15 of 2014 was unconstitutional (owing to a lack of public participation in the law-making process). This legislation had sought to allow for new lodgements of land claims. The court gave the South African Parliament 24 months to rectify matters, meaning it has until July next year. It seems there will be new legislation. Like the earlier act that was ruled invalid by the Constitutional Court, this piece of legislation aims to provide a new five-year window for land claims to cater for those who missed a previous cut-off date in 1998. Depending on how this proceeds, this means the Land Claims Lodgement Centre might be busy again…

Land Claims Lodgement Centre
Thanks to Hansie and Melanie Geyser for pointing this sign out to me, then humouring me when I took a photo.

Another aside worth mentioning relates to something I spotted from the window of a bus tour, yet failed to photograph. This was a sign painted on a wall next to a crossroads in Soweto, urging people to lodge a land claim. Does Scotland need to do more to advertise its land reform laws? For my part, I think Scotland does okay, but I do appreciate I am a) interested in these things and b) on the internet too much. Maybe advertising on street corners in less salubrious post codes is something that could be considered in Scotland too.

Redistribution

Interesting as restitution may be, consideration of the redistribution aspect of land reform leads to a more instructive comparison between Scotland and South Africa. Here, the land that is subject to reform is being reallocated in a way that is not directly linked to a past wrong. Instead, present day land rights are being revisited to reflect present day needs. There is provision for this in the South African Constitution.

Scotland has a number of rights to buy land which facilitate land transfer from one party to another, including some situations where a tenant can buy out her landlord and also situations where a community can acquire land local to it from a private individual. This might be on a “first refusal” basis (i.e. a community will be given first dibs on any land a local landowner wishes to sell) or, in some circumstances, on a forced sale basis (i.e. the landowner has less of a say in when or indeed if the land is sold).

In terms of how much land is to be redistributed, the Scottish Government has indicated that it wishes to see 1 million of Scotland’s 20 million acres in community ownership by 2020. For its part, in 1994 South Africa announced a target of having 30% of agricultural land in black ownership by 1999. This target year was subsequently amended to 2014. Both targets have been missed. (Without commenting on whether either the 1 million acres or 30% target should be higher or lower, in can be noted that the scientific reasoning for either figure has not been made out, although the importance of having a target should not be dismissed.)

South Africa also has something of a community focus in this branch of the reform programme. The first statute that catches the eye is one I have already mentioned, namely the Communal Property Associations Act. It has been described (in the Bakgatla case) as “a visionary piece of legislation passed to restore the dignity of traditional communities. It also serves the purpose of transforming customary law practices.” It would be fair to say that the community associations that can be formed under that legislation have a bit more flexibility than the Scottish model. That said, Scotland has now increased versatility in this area, after the Community Empowerment (Scotland) Act 2015 added the Scottish charitable incorporated organisation and the community benefit society as eligible community land holding bodies to what was previously the only option of a company limited by guarantee.

Another point that is worth noting here is – perhaps surprisingly – the legal rules in Scotland for redistribution of land seem a bit more radical. This is because South Africa (to date) has focussed on the willing buyer, willing seller model, whereas Scotland does allow for some compulsion in limited circumstances (in relation to crofting land, and there will soon be other rights in relation to neglected, abandoned or environmentally mismanaged land). That is only part of the story though. The overall South African position as regards communal land is slightly difficult to comment on in a blog format such as this, but suffice it to say it is complicated by a history of racial land policy that went as far as setting up puppet black states called “Bantustans”. There are then a variety of modern factors such as the Communal Land Rights Act 11 of 2004 and multifarious questions about what or who embodies a community. (That 2004 statute, like the more recent restitution statute already mentioned, was also struck down by the Constitutional Court, again for improper parliamentary process.) There is also a possible reassertion of tribal landownership. This is difficult to comment on from a Scottish perspective, but it seems almost akin to Scotland trying to reintroduce the heritable clan jurisdictions that were abolished in the tumultuous times of the 1700s (albeit without such a time gap).

In terms of future redistribution, ongoing concerns about the pace of land reform has led to much speculation about what should happen next and in particular whether and if so when South Africa will move away from its willing buyer, willing seller model. (There are also questions about expropriation and compensation.) Much of this might be tied to the new Regulation of Agricultural Land Holdings Bill and a new Land Commission. That’s right, South Africa could be getting a Land Commission, not long after Scotland introduced one via the Land Reform (Scotland) Act 2016. It appears the South African version will be a little bit different to the Scots version though: for example, it will seek information about landowners (such as race, gender and nationality) and check on the use and size of the agricultural land holding. In due course it will have a role in relation to the proposed capping of the size of agricultural holdings (see below) and redistribution of land from holdings that are above the cap.

From discussions with postgraduate students at Stellenbosch, I know there are some questions about how such a new Land Commission will interact with the existing Deeds Registry (where title deeds relating to ownership are registered), so this is something to keep an eye on. There is also an ongoing issue in South Africa in terms of simply working out who owns what. To an extent, this chimes with current Scottish developments, where there is a drive to complete a transition of all titles to the Land Register by 2024, but more importantly there is a related drive to work out who holds controlling interests in any landowning entity (from Part 3 of the Land Reform (Scotland) Act 2016). Both jurisdictions could benefit from comparisons with the other.

As for the Regulation of Agricultural Land Holdings Bill itself, that could cap the size of South African landholdings or prohibit the acquisition of ownership of agricultural land by foreigners. Similar proposals were explored by the Scottish Land Reform Review Group, although a) it did not go so far as to propose what the cap might be, and b) the foreign ownership restriction would have targeted ownership of land by non-EU entities, rather than all foreigners. Neither of these proposals were included in the most recent Land Reform Act, but if South Africa takes steps in this direction that will be yet another reason that makes South African land reform something to watch. (As an aside, it can be noted that one reason for the non-EU entity point not being included in recent Scottish reforms is up in the air following the Brexit vote. There were fears such a step might breach EU law. Depending on the exact flavour of Brexit, this obstacle might be removed.)

Tenure reform

Tenure reform amends the manner in which control is exercised over property. This branch of South African land reform has been especially important, in relation to security of tenure, i.e. a right to stay on land. This is normally important for the likes of labour tenants on farms (and specific legislation was passed for that). There have also been two important statutes that apply to regulate eviction depending on where an occupier of land is.

In urban areas, there is a chance to grab a slice of the PIE. (Sorry, that is terrible legal pun.) The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 18 of 1998 both prohibits unlawful evictions and provides procedures for the eviction of unlawful occupiers. This legislation is analysed in a chapter by Professor Anne Pope in Professor David Carey Miller’s forthcoming festschrift, which will be published by Aberdeen University Press, so I will not say too much about it here. All I will note is it essentially provides that evictions can only take place when it is just and equitable for that to happen, and this might mean a landowner will not be able to recover possession from an occupier in all circumstances.

In rural areas, in addition to protections for labour tenants, protection is afforded by the Extension of Security of Tenure Act 62 of 1997. This conferred security of tenure on those who had, at one stage, been occupying land with the consent of the owner, and again this prevents eviction from a home unless it is just and equitable. An additional point worth noting here is that eviction actions can take place in a Magistrates’ Court (roughly equivalent to a Sheriff Court), but eviction orders are subject to automatic reviews by the dedicated Land Claims Court. All of this means people do not lose their homes lightly.

At this point I offer one aside from a Scottish perspective. In 2003, legislation was passed by the Scottish Parliament with a view to giving an element of security of tenure to a certain class of rural occupier, where that occupier (and active farmer) held land via a juristic personality called a limited partnership, with the landowner being a partner in that venture. The limited partnership was either of a definite length or the landowner was able to bring it to an end by taking certain procedural steps. The reform enacted by the Scottish Parliament was rather technical, to say the least: sections 72 and 73 of the Agricultural Holdings (Scotland) Act 2003 are not easy to understand, but essentially they sought to upgrade the active farmer into a class of tenant that enjoyed greater security of tenure. Technical issues aside, the more fundamental problem is that a court ruled this reform was a breach of an affected landowner’s human rights, as the imposition of a secure tenancy was found to be an interference with the landowner’s peaceful enjoyment of his possessions. Remedial legislation followed. (Further reading is available on my personal blog.) The analogy between the jurisdictions and the situations is not exact, and, for Scotland, any moment to cater for these individuals has passed. That notwithstanding, the South African model of extending security of tenure seems much simpler than the route which was eventually followed by the Scottish Parliament. As such, any future attempts by Holyrood to confer security of tenure to any class of occupiers might benefit from a comparative approach.

Another aspect of South African law, or perhaps even South African culture or philosophy, is the notion of ubuntu, which flows from ideas of human interdependence and dignity. Whilst there is no single definition of ubuntu, this did not stop it playing a role in the case of Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC). As noted by Justice JY Mokgoro in a short chapter in Frank Diedrich (ed), Ubuntu, Good Faith and Equity: Flexible Legal Principles in Developing a Contemporary Jurisprudence (Juta, 2011), “ubuntu was the underlying principle for the Court’s articulation of the proper procedure that must be followed when evicting vulnerable people from their homes.” Now, I am not going to be so crass or naïve as to suggest ubuntu‘s balance of individual rights and a communitarian philosophy could simply be lifted across to Scotland, but it did make me ponder a couple of things. In relation to historic Scotland, it reminded me of the Highland notion of duthchas, implying a connection to land that transcends legal ownership, which the historian Professor Jim Hunter and others have written about. More importantly, in relation to modern Scotland, I wondered if the was an analogy with the new land rights and responsibilities statement, which is provided for by Part 1 of the Land Reform (Scotland) Act 2016. Whilst landowners have always had certain obligations and responsibilities in Scots law, it is genuinely an exciting time for Scottish land law as Scottish society tries to pin down what a landowner’s responsibilities should be. Whether it is from ubuntu or from something else entirely, South Africa could be able to teach us something.

Conclusion

For the purposes of a provocative conclusion, let me replace that optimism with a dose of cynicism. Comparisons are tricky. One problem with comparisons is knowing where to stop. Given I have cleared 5,000 words, now seems as good a time as any. Before I go, I will set out some words of caution about comparative law, then draw some final conclusions.

The trouble with analogies is that they are different. So it goes with comparative law. I touched on some of the different socio-economic factors in my earlier post about the Stellenbosch Legal Aid Clinic. In addition to setting out some of those issues, that post explains how places like Stellenbosch Legal Aid Clinic try to address the unmet legal need of indigent South Africans, and of course there are fundamental matters like access to justice at play when it comes to the land question. This can be seen from the case of Nkuzi Association v The Republic of South Africa (LCC/10/01), where legal representation of respondents in eviction matters in terms of the Extension of Security of Tenure Act became compulsory. Scotland and South Africa do have some key historical and contemporary differences, which means there are certain limitations when it comes to transplanting ideas or rules from one legal system to another.

That said, I hope you learnt something from this blog post. I found it challenging to write, in part because I was an outsider looking at South Africa, but mainly because I wanted to do it justice. In fact, I spent more time writing this post than I had initially planned to. I do not regret that though. I felt it was important to write up my trip in the fullest possible way and this post, coupled with my note about the Stellenbosch Legal Aid Clinic and even my post about national parks, just about does that.

To reflect on the trip as a whole, I feel I learnt a lot. In addition to having access to the legal materials to allow me to draw this post and my wider thoughts together, I also benefited immensely from chatting to students, scholars and many other people I met along the way. For example, in a seminar at Stellenbosch I was asked to what extent the Scottish land reform programme was about human dignity (because the South African programme is), which really got me thinking. Then there were discussions with students and postgraduates at Stellenbosch and the University of Cape Town, which kept me on my toes as I tried to answer questions like the deceptively simple, “Why is Scotland doing what it is doing?” or the grenade of “Wait, what is crofting?” Then there were chats with non-lawyers, who politely/incredulously asked what I was doing in South Africa. I hope I managed to answer them at the time, and I hope this blog post serves as an answer to anyone who was too shy to ask that question directly.

UCT Seminar
A picture from a seminar at the University of Cape Town. Photo credit, Hanri Mostert. (Hanri also happens to be a Professor of Law at UCT. If you want to read about mineral rights in South Africa (yet another matter I failed to cover in this post), read her book about the topic!

 

Four Weeks in Aberdeen

For the past four weeks, I taught a Comparative Crime and Punishment course at the University of Aberdeen. Teaching in the summer school was a very enjoyable and enriching experience for me and all of the students in the program. I know a lot of planning by University of Aberdeen staff and faculty, including Carol Lawie, Anne-Michelle Slater, Susan Stokeld, and many others, went into putting the summer session together, and it really showed. The sessions on law in the United Kingdom were very informative, whether the topics were violence reduction (in a talk by guest speaker Karyn McCluskey, the head of Scotland’s Violence Reduction Unit), the history of surveillance (in a lecture delivered by Dr. Philip Glover), or medical malpractice or the National Health Service (in discussions I sat in on as part of Prof. Diane Hoffmann’s Comparative Health Law class).

In the United States, I teach courses on civil procedure, contracts, capital punishment and international human rights law at the University of Baltimore School of Law. Over the course of the summer session in Aberdeen, everyone in the program got an introduction to Scots law, U.K. penal practices, and the City of Aberdeen courtesy of the Lord Provost and local residents. We got to do everything from visit the Scottish Parliament and the Faculty of Advocates in Edinburgh to tour the new prison and prison museum in Peterhead. Seeing the new prison and the old prison facility side-by-side was a particularly eye-opening experience for the American law students in the program. And the trip to the new prison and the Peterhead Prison Museum sparked lots of conversations and debate about America’s correctional system.

The students in the Comparative Crime and Punishment course had the chance to research and write papers on topics of their choice. After learning about the Scottish legal system and the difference between American and Scottish sheriffs, a number of the students chose to explore and write about the differences between American law and Scots law. One student chose to write about Scotland’s unique “not proven” verdict (especially after hearing a poster presentation by a Ph.D. student at the University of Aberdeen who highlighted the contrast between 15-person juries in Scotland and 12-person juries in the U.S.). Another student chose to write about the differences between policing in Scottish cities and in Baltimore, while another decided to explore Scotland’s corroboration rule compared to American rules of evidence.

Scotland is a beautiful place, and like many of my students, I got a chance to see lots of historic sites during my stay. A visit to Stonehaven and Dunnottar Castle was a particular highlight, and train, ferry, bus and taxi rides allowed me to experience the sights of Inverness and Urquhart Castle, the Isle of Skye and the Fairy Pools, and Glasgow’s impressive cathedral and city hall as well as its streetscapes. In Aberdeen itself, I really enjoyed spending time at the university’s impressive library and strolling through Stewart Park and St. Machar’s Cathedral. As part of the Aberdeen International Youth Festival, which coincided with the summer course, I also got to see a wonder concert involving a joint performance by an Icelandic choir and a choral group from Glasgow.

My time in Aberdeen could not have been more fulfilling or rewarding. The study of comparative law allows students and faculty members alike to gain new perspectives, and by meeting and hearing from new people who are experts on another country’s laws and practices, the opportunity for learning is amplified and increased exponentially. A visit to the Tolbooth Museum in Aberdeen–formerly a seventh-century jail–reminded me and other students who paid a visit of just how far we’ve come since the Scottish Enlightenment, which we also discussed at length as part of my course. In-class student participation was tremendous, and a lot of that is attributable to the intellectual atmosphere created by the chance to study abroad.

The Scottish tradition of coffee, tea and snacks between classes made time for additional conversation, and it also made the exchange of ideas particularly sociable and fun. And the closing lunch, with a bagpipe performance by a member of the law faculty, turned out to be a perfect way to end the course of study. The food, drink and celebratory remarks capped off a near perfect summer, with the only glitch I experienced during my whole time in Aberdeen being a seagull swooping down and snatching a big bite of a ham-and-cheese sandwich I’d been nonchalantly eating as I walked along King Street after class one day. Now I know why a sign on a little eatery near Aberdeen’s Union Street reads “Beware the Seagulls”!

One of the many things we learned outside of the classroom is that Aberdeen’s ancient motto is “Bon Accord” (French for “Good Agreement”). The city’s official toast, in fact, is “Happy to meet, sorry to part, happy to meet again – Bon Accord!” I was extremely pleased to meet everyone in Aberdeen and it was hard to say goodbye, but I know that I’ll see everyone again soon. There is already talk of a reunion of summer school alums in the works. In the meantime, I’ll carry my fond memories of Aberdeen with me as I head into a new semester of teaching at the University of Baltimore and the Georgetown University Law Center.

John Bessler is an Associate Professor at the University of Baltimore School of Law and an Adjunct Professor at the Georgetown University Law Center. He is the author or editor of multiple books on capital punishment, including most recently The Death Penalty as Torture: From the Dark Ages to Abolition (Durham, N.C.: Carolina Academic Press, 2017) and Justice Stephen Breyer’s Against the Death Penalty (Washington, D.C.: Brookings Institution Press, 2016).

High heels at work: does the law need reformed?

This blog post is by Heather Morgan and Max Barnish. It is a guest blog post, but read on to discover the  School of Law connection…

In April 2017, a petition to make it illegal for employers to force women to wear high heels in line with corporate dress codes was rejected by the UK government. It was deemed that existing equality legislation – the Equality Act 2010 – is sufficient to protect women from the widespread discrimination they face in the workplace in respect of their footwear choices, or lack thereof.

This week, a fresh call was issued following the most comprehensive review of evidence of the health risks and social benefits surrounding high heel wearing, which was published in the journal BMC Public Health. The study was led by Dr Max Barnish and found that there is a clear link between high heels and poor health outcomes, and therefore no person should be compelled to wear them in the workplace or other settings.

The publication of this research sparked mass press coverage across the UK and internationally. Heated public TV and radio debates followed, including appearances of the University of Aberdeen researchers who undertook the review. Dr Heather Morgan, a health services researcher and Aberdeen law graduate who co-authored the study, said: “women’s health should not be exploited in favour of commercial branding. This is not just an issue of equality and discrimination, but of health and safety at work.

Dr Barnish continued: “Our review demonstrates a need for this issue to be taken more seriously by either the UK or its devolved governments. We know that many employers continue to compel women to adhere to strict dress codes, which often include a requirement to wear heels. Existing legislation might imply that this is illegal, but the law is not frequently or easily enforced. Meanwhile, heels continue to cause wearers pain, long-term physical damage and injury, which could easily be prevented.

The researchers have made it clear that they are not trying to tell people what they can and can’t wear: choice is key, particularly because the review also identified numerous social benefits that wearing heels might afford women, which come about through heteronormative standards and expectations. Those are for another discussion; however, from a legal perspective, when health is put at risk, which the evidence here shows in no uncertain terms, employers have a duty of care towards their employees.

Dr Morgan added: “It is ludicrous that employers can and do enforce terms of a contract of employment that might put the health and safety of their staff at risk. Our work has now shown that this is the case. The law in this area as it stands remains difficult to enforce because it relies on proving discrimination on the grounds of sex (i.e. if females are required to wear heels, proving that male colleagues are not). While that is important and should remain an option for employees, we believe that a concrete rule banning enforced high heel wear at work (or in other settings) must be enacted – on public health grounds.

56102234 - businesswoman taking off high heels shoes after work at home
Image credit – University of Aberdeen

Access to land – some lessons from around Scotland

This post is by Malcolm Combe. It was updated on 3 August 2017 to link to a report that the gates mentioned below will now remain open.

The issue of people taking access to land for passage or other activities can be both a practical and an emotive issue.

From the perspective of landowners, land managers or any other occupiers, there might be a fear of irresponsible land access causing damage to their property or wildlife, not to mention the simple fact that access takers could get in the way of a chosen land use. There might also be issues that are more difficult to quantify, such as concerns relating to privacy or safety.

From another (non-owner) perspective, members of the public might grudge being denied access to large swathes of the outdoors for recreation or to learn about wildlife, or they might wish to get from A to B in a simple and non-intrusive way. Depending on the circumstances, they might baulk at being lumped together with anyone not taking access responsibly, especially if they are willing and able to conduct themselves in a way that will not interfere with a landowner’s chosen activity. There may also be historical, cultural or even health-related reasons why people feel access to land that is not owned by them is something that nevertheless matters.

Every so often, stories will emerge online or in the press about access issues that can set these tensions against each other. This might occur when a path is blocked or access is otherwise restricted. Some recent situations in Scotland serve as an opportunity to discuss and reflect on the regulation of access to land.

The settings for these stories are very different, but the underlying legal points are similar. The first story relates to the installation of gates at the southern extension of the Speyside Way in the Scottish Highlands (which opened in 2015). The second relates to Elderslie Golf Club in Renfrewshire.

No particular comment is offered on either situation here. Rather, this blog will set out some points about the law in Scotland, then illustrate how that law might apply with reference to those situations.

Regulating Access to Land

Different legal systems have different rules to regulate access to the outdoors. In Scotland, public rights of way might allow people to travel from one public place to another (often along traditional routes to, for example, a market, kirk or cemetery). Such rights of way continue in the modern era, but the most important law is the Land Reform (Scotland) Act 2003. Part 1 of the 2003 Act liberalised access to Scotland’s outdoors by allowing for recreational, educational and in some cases commercial access to be taken over land, with an additional right to cross land (separate to existing rights of way), without the owner of that land’s prior consent.

That sounds striking, but the 2003 Act does not establish a free for all. These rights are subject to two important qualifications.

The first qualification is that the accessed land must not be excluded from the scope of the law, owing perhaps to the characteristics of the land. The key provision is section 6, listing a variety of situations where access rights are incompatible with the land in question. Land where there is a building or where crops are growing are thus excluded, as is land that has been manicured as a bowling or putting green. (Golf courses as a whole are something of a special case – more on that later.) The scope of the law is clear though: access rights will apply, unless they are excluded. This means they apply across much of Scotland, Highland and Lowland, rural and urban. (The urban dimension might be of particular interest to observers from other jurisdictions.)

The second qualification is that any access taken must be responsible. As detailed in section 2 of the legislation, access is not responsible if it unduly interferes with the rights of others. Understandably, that would include the rights of the landowner, but it also includes other access takers as well. Guidance as to what is responsible can also be taken from the Scottish Outdoor Access Code (PDF). Furthermore, the statute provides that some conduct can never be classed as responsible (such as being on land in a motorised vehicle). Meanwhile, a landowner is under certain reciprocal obligations to use and manage land in a manner which is responsible in relation to access rights. And again, there are certain things that will not be classed as responsible management, including actively placing impediments to access (more on that below).

I could quite happily write about all of this at length. Rather than do that, I will direct eager readers to my other posts about how this law operates, including on this blog – in the context of the augmented reality game Pokémon Go – and on my personal blog – about the possible introduction of a charging regime to access a country park. I will now consider the specific examples.

The Speyside Way*

It has been reported that gates have been installed at Kinrara, where a path runs between Newtonmore and Aviemore (see here, here and here, photos available here). There is no indication that irresponsible access is a problem at Kinrara. There is no particular question of this land being excluded from access rights (and, in fact, there is a strong indication to the contrary). Was the landowner entitled to take these steps?

The Bogach
“The Bogach, Kinrara Estate” © Dorothy Carse and licensed for reuse.

The first thing to consider is section 14 of the 2003 Act. It seeks to stop landowner interference with access rights, and it does so by mandating that no landowner shall act in a manner that directly prevents or deters any person entitled to exercise access rights from doing so. In particular, it notes a landowner shall not put up any sign or notice, position or leave at large any animal or (for present purposes) “put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation”. This provision can be enforced by the relevant access authority: in this case, the Cairngorms National Park. (In terms of the legislation, the bodies charged with upholding access rights will either be the relevant local authority or (if the area is in a national park) the relevant national park.)

This is not to say a landowner cannot do anything at all on land in a way that could affect access: legitimate land management activities are allowed. A landowner will only fall foul of section 14 when taking steps that are solely or primarily aimed at the prevention of responsible access. Erecting certain types of barrier might even be allowed: for example, in one case in the Black Isle a barrier erected to prevent equestrian access (in a way that would churn and damage a path) was ruled to be acceptable in court (in the particular circumstances of that case, which included an alternative and nearby route for horses). Whether that is a suitable precedent for Kinrara will be revealed in the coming weeks: from a distance, my initial view is that is does not.

Another factor at play at Kinrara is that land there has already been subject to a “Path Order” in terms of section 22 of the 2003 Act. This is a little-used section of the statute found within a series of provisions about the role of access authorities. This has been the only usage of such an order in Scotland. (The related back story caught the attention of the press at the time.) It specifically allows an access authority to delineate a path where access rights are exercisable. Naturally, this is an ongoing situation and any comment on it must be ventured with caution. I have not visited the site and I am not sure exactly where the gates are, but this does seem to be a strong indication that access rights apply at or around the barriers. What can also be said with confidence is the overall effectiveness of the legislation is being put to the test here and many people (myself included) will be watching developments closely. Lastly, if for whatever reason matters stall, it will be recalled that section 16 of the 2003 Act allows for compulsory acquisition of land by access authorities (with due process) for the enabling or facilitation of the exercise of access rights.

*UPDATE 3 August 2017: The website of the Cairngorms National Park Authority now reports that agreement has been reached to keep the three gates open.

Access to Elderslie Golf Club

The issue of a new fence at Elderslie Golf Club has not had the same coverage as Kinrara. It is fair to say it is not as high profile – no offence to my friends in Renfrewshire, but the Black Cart-side Way has yet to gain the same status as the Speyside Way. Nevertheless, it has prompted some reaction locally, as these photos taken from BBC journalist and UWS Teaching Fellow Annie McGuire’s Twitter account show.

DOWN WITH THIS SORT OF THING
Careful now.

QUICKER THAN TRUMP

Ms Maguire has created a number of YouTube videos (here, here and here), which give some indication of the setting. I understand there is an alternative access but, per the third video, this is not convenient for all residents. It can also be noted that Elderslie Golf Course does feature on the network of core paths in Renfrewshire (see path 8 on Core Paths Plan Map 6 here, PDF here). This is a path that (in this case) Renfrewshire Council has marked out as being part of a system of paths that gives the public sufficient access to its local authority area, so at least some degree of access around Elderslie has already been planned for.

Can access be taken to a golf course? As already noted, putting greens are excluded. The rest of the course is not excluded, although the twist with golf courses is that access is only allowed for the purposes of crossing the land. Recreational and other activities that involve staying on the land are specifically classed as not responsible. This means there is a right to walk across a golf course without the golf club’s prior permission, but if you want to stop for a picnic you had better ask.

What does this mean for a new fence at Elderslie Golf Club? It means section 14 comes into play again. That is to say, fencing that is wholly or mainly aimed at deterring or preventing access can be subject to enforcement action by the access authority.

That prompts an important question: what is the fence for? Sure, stopping for a picnic on a fairway might not be very sensible, and even dashing across a fairway has certain risks. As such, a golf club and its golfers will not want people to put themselves at risk of injury (and in turn put themselves at risk of an occupiers’ liability or other claim for damages). Signage to this effect could be a way to deal with this, rather than completely restricting access. That being said, I understand from Twitter correspondence and the local press that there has been a degree of antisocial behaviour on site, including damage to the course. Outside looking in, I wonder if a complete restriction of access is the only way to deal with this. Could restriction at certain hours of the day be more appropriate? That was the approach adopted in a sheriff court case about an access route in Glenrothes, Fife. (At least one Twitter correspondent has agreed this might be a plausible solution in Elderslie.)

Meanwhile, it can be noted in passing that there might be other issues at play. Ms McGuire has been (metaphorically) digging around and there may have been some historic local access at Elderslie Golf Course for allotments of some kind. It is also possible that there are private rights as between the golf course and the neighbouring land (linked to those allotments or otherwise). Such rights could only be ascertained by looking at the title deeds for the various properties or knowing a bit more about historic usage. Or there might be a public right of way, which can spring into being after twenty years of continuous use by the public (the Twitter account @ElderslieGrapes has asserted that access at Glenpatrick Road “has been there for 40+ years”). All of this is speculation, so it seems appropriate to leave matters there.

Conclusion

Whilst these two examples can be viewed as local interest stories, they do serve to highlight various issues that can arise. It might be that a similar access issue crops up near you in the future. If and when this occurs, a greater understanding of Scotland’s access regime might stave off future access disputes, perhaps by preventing local misunderstandings or over-corrections escalating into full-blown litigation. After all, going to court is not a walk in the park.

Image credit and full details for “The Bogach, Kinrara Estate”: copyright Dorothy Carse and licensed for reuse under this Creative Commons Licence, original here. Image credit for the signage at Elderslie: Annie McGuire.

The Malta Marriage Equality Bill: a further comment

This blog post is by Justin Borg-Barthet.

My earlier comment on the Maltese Marriage Equality Bill has prompted some discussion, including in an article in Sunday’s Times of Malta. In that article, Silvan Agius – a Maltese champion of LGBTIQ rights – responded on behalf of the Government of Malta.

Let me begin by identifying the common ground between that response and my own legal assessment. Mr Agius and I agree that a dynamic reading of fundamental rights law requires the elimination of all forms of discrimination on grounds of sexual orientation. This includes the right to marriage.

Equally, we agree that same-sex relationships should not, at law, be treated as asexual relations any more than should different sex relationships.

Contrary to his reading of my own argument, we also agree that foreign models should not be adopted blindly. Comparative law requires a critical approach to both/all relevant legal systems.

Our disagreement concerns the methods employed to achieve equality. This is a border skirmish between friends (literally and ideologically), not a fundamental dispute concerning the dignity and liberty of individuals.

‘Government could not blindly reproduce [Scots] law’

I have no brief to defend or promote Scots law. Indeed, Maltese law is, in some respects, more progressive. By way of example, civil unions are gender neutral in Malta, whereas civil partnerships are open only to same-sex couples in Scotland.

Mr Agius was setting up a straw man when he stated that Malta could not ‘blindly reproduce’ Scots law’. Nowhere was this suggested. Maltese and Scots law are substantively different and require different solutions. Legal transposition should not, in principle, constitute ‘blind reproduction’.

Furthermore, the stated reasons for rejecting the Scots law model are far from persuasive. Mr Agius’ explanation rests on two limbs, both of which are unsound.

The first limb of his argument is that ‘in Scotland, England and Wales, gay marriage was regulated by distinct laws.’ This is neither here nor there, and indeed is not entirely accurate. The Marriage and Civil Partnership (Scotland) Act 2014 amends the Marriage (Scotland) Act 1977 with a view to opening the earlier Act up to same-sex couples. The appearance of a lack of consolidation is simply a function of different legal traditions.

Furthermore, nowhere do I argue that “non-consummation should not be a ground to annul a same sex marriage”. If I had, I would indeed have been arguing “that same sex marriages are not on par with heterosexual marriages”. Mine was a criticism concerning a lack of definition. Indeed, the position in Scotland – contrary to Mr Agius’ contention – is that the notion of consummation simply is not addressed in its own right for couples of either gender-mix. The problem does not arise in the same manner.

Again, I do not suggest that this should be the position in Malta. I am simply arguing that the Maltese position is unsound. Consummation has a specific meaning which should either be changed for all couples or adapted for same-sex couples.

I was also somewhat surprised to read the Maltese government’s claim that ‘Scots law was consulted extensively’. Extensive consultation should include deep engagement with reports and consultations conducted abroad, not mere skimming of the surface. Had the Maltese government indeed consulted Scots law extensively, they would have been aware that sex was not ignored at all when marriage equality was adopted.

Far from homosexual sex being taboo, the subject was debated in some depth with a view to identifying adequate solutions. It was agreed that superimposing established opposite-sex norms concerning impotency simply could not work. This required careful consideration of sexual interactions, as opposed to sweeping this fundamental dimension of married life under the carpet, as has been done in Malta.

The decision was made to defer discussion concerning impotency for different sex couples, but to adopt a more liberal approach for same-sex couples. This was not because the legislator shied away from the reality of homosexual relationships, but because the legal ramifications had been carefully considered.

Now, Mr Agius is right to note that this has been subject to some criticism in Scotland, but it does not follow that the Maltese solution is adequate. Indeed, by retaining impotence as a ground of nullity unchanged for same-sex couples, Malta is simply choosing discrimination in practice for the sake of political sloganeering.

Abdication of Parliamentary responsibility: “The law courts will have to take into account the new realities and adapt the law to them”

The Maltese Government claims that the decision not to distinguish between the organic interactions of same-sex and different sex couples stems from a desire to preserve the unity of marriage. Yet the government response to my earlier comment contradicts this claim.

Mr Agius states that the courts will determine the meaning of impotence and consummation, in the same manner as they have done for different sex couples. If the intention is for marriage to be the same, then how will the courts reconcile the meaning of established terms with different organic realities of different sex couples? This is either a backdoor change to established definitions for different sex couples – which does not appear to be the intention of Parliament – or, it is an admission that different and same-sex couples simply cannot be regulated in the same manner.

Secondly, Mr Agius’ argument is a quite extraordinary admission that Parliament intends to leave a lacuna in the law which it expects the courts to address. To put it mildly, this is a somewhat idiosyncratic approach to the separation of powers. It is for Parliament, not the courts, to deal with the finer detail of family law policy.

But Mr Agius’ suggestion also misses a fundamental point about judicial legal development.   To the extent that courts did in fact elaborate the meaning of impotence and consummation for opposite sex couples, they had a wealth of comparable international experience on which to rely. Marriage law in Malta is, after all, derived from ecclesiastical sources. In contrast, same-sex relationships will not benefit from much international experience.

Furthermore, where there is international precedent, this is not necessarily relevant because regulation of same-sex relationships, novel as it is, differs from one jurisdiction to another. Indeed, Malta’s major parent legal systems, namely English common law, French civil law and Italian law, now regulate marriage quite differently to the contemporary Maltese approach. International precedent is simply unavailable, and Maltese same-sex couples will therefore have to rely on courts which lack the critical mass to develop solutions as predictably as one might expect.

Concluding remarks

Effectively, then my earlier suggestion that same-sex couples will be subjected to a lack of legal certainty, and in some cases to costly (both financially and emotionally) litigation remains sound. Indeed, it is implicitly confirmed by the Maltese Government that this transfer of the burden of regulation is intended by the legislator.

I remain of the view, therefore, that the Maltese legislator should engage more carefully with ongoing legal developments and consult in a greater spirit of openness. This will enable the better fulfilment of the declared aims of the legislation. It may also enable the legislator to address other unintended consequences, such as the discriminatory treatment of conversion of civil unions and marriages (while civil unions may become marriages, existing marriages cannot be converted to civil unions – a somewhat regressive approach – but more on that later…).

Malta Sunday Times

Crofting Law Group Conference 2017 – Reflections of an Aberdeen law student delegate

This blog post is by Simon Boendermaker, a recent LLB (Hons) graduate of the University of Aberdeen. Comments from Brian Inkster, Hon. Secretary of the Crofting Law Group, and Malcolm Combe follow.

Recently I had the opportunity to attend the Crofting Law Group Annual Conference, this year held in Stornoway on the Isle of Lewis, thanks to the generosity of the Group providing free student tickets and subsidised travel and accommodation.

As my Honours courses at the School of Law included both the Rural Law and Law of Leases courses (co-ordinated by Malcolm Combe and Douglas Bain respectively), I did not want to miss the opportunity to take part in an event which appealed to my interests. Alongside this, the programme for the conference featured an afternoon of events dedicated to common grazings, which had been the subject of considerable controversy in crofting communities in the previous twelve months. The opportunity to see vigorous debate between the newly elected crofting commissioners and representatives of the Upper Coll and Mangersta grazings committees, who had been sorely affected by the actions of their predecessors, made for a captivating agenda.

The conference took place in the picturesque surroundings of Lews Castle, the ideal setting to soak in my first visit to the Hebrides. However, there was little time to admire the scenery as a packed schedule of events began with a warm welcome from Iain Maciver of the Stornoway Trust (the community landowner of property in and around Stornoway), followed by a brief introduction to the day’s events from Duncan MacPhee, vice chairman of the Crofting Law Group.

As the programme of the conference would focus on crofting law reform, Fergus Ewing, the Cabinet Secretary for the Rural Economy and Connectivity, gave a brief video outline of the stance of the Scottish Government on current legislation. Ewing highlighted that the Scottish Government agreed with the views of crofters that the law was in need of reform, expressing sympathy with the view that legislation had become overly complex for the average crofter. He also revealed that the Government was engaging with crofters over the direction that reform would take, with one approach being to consolidate legislation into a simpler Act or alternatively to adopt a clean sheet approach and developing a completely new legislative framework. However, his comments were tempered by his acknowledgement that the government currently has several “legislative priorities” which meant that crofting would be balanced alongside several competing interests.

The clean sheet approach which was mentioned by Fergus Ewing was rejected by Patrick Krause and Russell Smith, chief executive and chair of the Scottish Crofting Federation. Both noted that legislative reform was low on the list of priorities of the average crofter and that they were generally concerned with areas of practical concern, such as decrofting (that being the term used for taking land out of crofting regulation) and assignation (transfer). Smith noted that a clean sheet approach would risk “throwing the baby out with the bathwater.”

Much discussion followed the next item on the agenda, when Duncan MacPhee revealed he had successfully arranged a standard security (the Scots law term for a mortgage) over an entire croft without the need to decroft the house and restrict the scope of the security to the decrofted land alone.

Bill Barron of the Crofting Commission discussed “a year like no other” for the Commission, stating that the previous board of the Commission had witnessed deep personal splits, which had led to it failing to act as a corporate body. Barron said he was keen to learn from the mistakes of the previous year, where members of the Commission had made individual regulatory decisions which had resulted in the breakdown of trust between individual crofters and the Commission. With regard to crofting law reform, Barron insisted that the Commission would work with the Government to ensure that any new legislation would support opportunity for new entrants, an area which urgently required examination to secure the future of the sector. Finally, he expressed a hope that, with time, the Commission would be trusted to work for crofters once again.

After lunch, where I was able to speak further with Barron about his plans for the future of the Commission after the previous twelve months, Brian Inkster gave a presentation on the controversy surrounding the Commission. A complete chronology of that could take up several blog posts: Inkster’s Crofting Law Blog provides exactly that, so those interested in further reading on that topic are directed there.

The final portion of the day gave crofters a chance to discuss the current situation surrounding common grazings. Calum Maclean from Upper Coll gave a passionate account of the previous twelve months from the perspective of the grazings committee on Upper Coll. He could not understand how Barron and the new Crofting Commission could be expected to win back the trust of ordinary crofters when they had done little to actively address the effects of the decisions of the previous Commissioners in 2016. However, he was able to finish by stating that ordinary crofters did not want to abandon the current framework but that serious work would be required to secure the future of the sector.

Crofting Law Group Discussion
A discussion during the conference.

The lively debate provoked by the afternoon’s discussions continued well into the evening, when I spoke to several crofters who had attended the conference over dinner and gained some invaluable insights from these conversations. A desire for reform was evident and it is clear that stakeholders will need to undertake serious engagement to secure the bright new future that crofting is desperately in need of.

After writing my dissertation on agricultural holdings, I was able to draw a number of parallels throughout the day between the situation of crofters and issues faced in the agricultural holdings sector, where secure tenants also benefit from a parcel of rights (some which are particularly strong, perhaps even stronger than the rights of the landowner). All of this has ongoing implications for the wider rural sector. For my part, the conference and indeed the discussions over dinner brought to life some of the issues that had been discussed in my law degree. Thanks again to the Crofting Law Group for providing me with the opportunity to attend this year’s conference. I would not hesitate to recommend future conferences to other interested students.

Comment from Brian Inkster

We have been running the assisted places scheme to our conferences for law students at the Universities of Aberdeen, Dundee, Edinburgh, Glasgow and Strathclyde for a few years now. It has been very well received by the Universities. It gives their students an opportunity to find out more about crofting law, a subject seldom touched upon at university. It is hoped that this exposure to crofting law may encourage those students to become tomorrow’s crofting lawyers. The Crofting Law Group will continue the assisted places scheme for next year’s conference which will be held in Edinburgh.

Comment from Malcolm Combe

The University of Aberdeen is very grateful to the Crofting Law Group for the support it gives to students from across Scotland. Whilst some courses at the Scottish universities touch on crofting matters, even with the best will in the world there is no way we could replicate a programme of events akin to the Crofting Law Group Conference for students to benefit from. We look forward to working with the Crofting Law Group in future, and if any other conferencing organisations would be interested in offering a similar student support scheme  we at the School of Law would be delighted to hear from you.

Crofting Students
From left to right: Brian Inkster (Secretary CLG), George MacDonald (Committee member CLG), Maureen Duffy (University of Strathclyde), Duncan MacPhee (Vice Chair CLG), Andrew Agnew (Dundee University), Fraser McDonald (Edinburgh University), Simon Boendermaker (University of Aberdeen), Gemma Thomson (University of Glasgow), Iain Maciver (Committee member CLG).

 

When non-discrimination is discriminatory: A Comment on the Maltese Marriage Equality Bill

This blog post is by Justin Borg-Barthet. It was originally posted on ‘Manuel Delia’s notes’, a Maltese political blog. It is re-posted here (with minor amendments) with kind permission.

Through the Marriage Equality Bill, Malta joins a small group of European nations which have both met and exceeded the requirements of the European Convention on Human Rights in respect of the elimination of discrimination on grounds of sexual orientation. It is particularly noteworthy that this development has met with the approval of all parties in the Maltese Parliament. This has not always been the case in other jurisdictions.

Malta also differs from its peers, however, in that it appears that political expediency has resulted in laws which have not been as carefully crafted as one might have hoped. Scots law on marriage equality, for example, developed following extensive public debate, with the benefit of significant academic input, and through careful legal drafting. The law is therefore clear, and same-sex couples are as aware of their rights and obligations as their different sex counterparts.

While Maltese law is driven by a dynamic, narrow human rights agenda, this appears to have occurred to the detriment of careful consideration of family law matters. Like the Civil Unions Act 2014 before it, the Marriage Equality Bill superimposes a heterosexual model on same-sex relationships. This is intended to achieve equality of rights, but in some cases results in a poor fit, to the detriment of same-sex couples. I will highlight two examples below, namely impotence and consummation.

Impotence

The lack of consideration for differences between heterosexual and same-sex models is most evident in relation to matters pertaining to sexual relations. In particular, the Maltese Marriage Act 1975 provides that a marriage shall be void ‘if either of the parties is impotent, whether such impotence is absolute or relative’. There is no distinction in the Maltese Bill between same-sex couples and couples of different genders.

This is to be contrasted with Scots Law, as well as the law of England and Wales. The Marriage and Civil Partnership (Scotland) Act 2014, for example, provides as follows:

For the avoidance of doubt, the rule of law which provides for a marriage to be voidable by reason of impotence has effect only in relation to a marriage between persons of different sexes.

The exclusion of impotence as a ground for nullity in same-sex relations in Scotland is motivated by the different realities of same-sex and different sex couples. The relevance of the stipulation that impotence is a ground for nullity is plain for spouses of different genders. After all, the provision was designed with them in mind.

For same-sex partners, however, it is not necessarily the case that impotence as traditionally understood is relevant to both, or indeed either, partner. Suffice it to note that intercourse between two women differs from that between a man and a woman. Similarly, intercourse between two men does not necessarily require both men’s bodies to function identically. Maltese law does not account for this.

Consummation

Equally problematic for same-sex couples is the regulation of consummation of marriage in Malta. This too differs from Scots law. In Malta, the absence of consummation within three months may result in annulment. Article 19A(1) of the Maltese Marriage Act 1975 provides as follows:

A valid marriage may be annulled at the request of one of the spouses on the grounds that the other party has refused to consummate the same.

It is especially unclear what constitutes consummation between two women, or indeed whether it is possible in the sense the law intended. Nor is it entirely clear what is meant by consummation for male couples. One might assume that penetration by one spouse of the other should constitute consummation. But it is equally arguable that one spouse could seek to annul the marriage where penetration occurred by one party but was ‘refused’ by the other.

All that is certain is that same-sex couples cannot be certain of the validity of their marriages.

Concluding remarks

The likely legal fallout could have been avoided given the successful foreign legislative models and external expertise available to the Maltese legislator. It is regrettable that it is precisely those whose rights were to be furthered who will suffer from a lack of foresight.

The resulting legal uncertainty will, of course, have no effect whatsoever on different sex couples. The law is clear in their regard. Contrary to arguments raised in the Maltese Parliament, to distinguish between different and same-sex couples is the very antithesis of discrimination. Maltese law discriminates by failing to account for differences. Same-sex couples in Malta are rendered vulnerable to a lack of foreseeability as to the meaning of the law.

It is the same-sex couples purportedly protected by identical treatment who are in fact vulnerable to a lack of certainty. It is same-sex couples who are vulnerable to spousal abuse arising from a lack of clarity in a marital contract in which the parties’ rights and duties are undefined. And it is same-sex couples who will have to suffer the emotional and financial burden of litigating points of law which the legislator appears not to have considered.

Raptor Persecutions & Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making

This post is by Dr Phil Glover.

As an academic opposed to wildlife crime and with no ‘huntin/shootin/fishin’ interests (or indeed abilities) to declare, I have penned this article as a follow up response to my colleague Professor Peter Duff’s recent contribution to this blog relating to the correctness of recent Crown Office and Procurator Fiscal Service (COPFS) decisions not to prosecute in some recent wildlife crime cases. His piece stimulated robust debate on the emotive issue of wildlife crime and the admissibility of evidence pertaining to it, an issue that I wholeheartedly agree is crying out for greater legal (and legislative) certainty in Scotland and the UK. A number of the comments posted on the Raptor Persecution Scotland blog following Professor Duff’s article reflect complex research issues currently vexing me and on which I am seeking comments. As the academic responsible for Professor Duff’s references to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) and the Data Protection Act 1998 (DPA) I feel it is necessary to expand upon them in light of some of the comments they have received.

The comments reflected questions I believe the COPFS would have to address in their decision-making. Some of them were partially (but in my view incompletely) addressed in a very helpful COPFS letter (PDF) of 30 May 2017 to Graeme Dey MSP (in his capacity as Convener of the Scottish Parliament’s Environment, Climate Change and Land Reform Committee). This article provides my arguably fuller answers and a suggestion or two as to how the current impasse or inconsistency in achieving successful prosecutions might be achieved.

Assuming no disingenuousness as to their purposes on the part of the Royal Society for the Protection of Birds (RSPB), it appears settled that its conduct in the controversial cases involved covertly placing and subsequently monitoring video-recording (data capturing) equipment adjacent to vulnerable wildlife sites for the (laudable) purpose (sole or otherwise) of processing the recorded film so as to provide Police Scotland and the COPFS with evidence identifying persons committing crimes against wildlife. On my admittedly skim reading of the cases referred to it appears that it is the RSPB, rather than Police Scotland, who undertakes the covert investigatory conduct. If not, disregard much of the analysis that now flows.

What are the legal implications of the RSPB’s conduct?

The legal implications of the RSPB’s conduct depend on the interpretation of two distinct legislative regimes that arguably apply.

The older, clearer, obviously applicable regime is that within the DPA. My PhD thesis concluded, inter alia, that virtually all forms of covert surveillance as commonly understood can be deconstructed to be reconceptualised as covert investigative data acquisition. Data acquisition and subsequent processing includes video recording of camera images and their subsequent use-  (Peck v United Kingdom, (2003) 36 EHRR 41 at [59] ) An excellent synopsis of the applicability of the DPA 1998 as regards the acquisition and processing of video recorded personal data in Scots law can be found in the recent case of Anthony & Deborah Woolley v Nahid Akbar or Akram [2017] SC Edin 7 (at paragraphs 72-74). For present purposes however, evidence suggests the RSPB are self-declared registered data controllers and data processors within the meaning of section 1 of the DPA insofar as they manage members’ personal data (defined in Section 1 of the DPA as … data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. Their role as controllers mandates them (DPA, s4(4)) to comply with all the data protection principles (DPA, Schedules 1-4 according to context).

Initial inspection suggests that the first principle has the most relevance:

(1) Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless

(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

In the context of the present analysis, the relevant Schedule 2 conditions are:

  • that the subject of the personal data has consented to the processing (not realistic in investigative covert information acquisition) OR
  • the data processing is necessary for the administration of justice OR
  • for the exercise of any functions of the Crown, a Minister of the Crown or a government department, OR
  • for the exercise of any other functions of a public nature exercised in the public interest by any person.

Schedule 3(6) additionally provides that sensitive personal data may be processed where such processing is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), and 3(7) replicates the permissions in Schedule 2 regarding administration of justice etc.

On this reading, the registered data controller (here the RSPB) can lawfully obtain and process personal data tending to identify a living wildlife offender for these purposes under the DPA and its principles. Added weight to this assertion can be given by the fact that section 29 of the DPA provides, inter alia, that personal data processed for (a) the prevention or detection of crime or (b) the apprehension or prosecution of offenders are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3).

If it is lawful, necessary and proportionate to the legitimate aim pursued (prevention of wildlife crime)  it is also ECHR compliant. Within the DPA regime therefore, all looks rosy for evidence of wildlife crime obtained and processed by the RSPB using covert investigative technical measures.

My view however, is that a second, more modern legal regime applies, namely that within the RIP(S)A. (HOLD THAT ‘PUBLIC AUTHORITY’ ARGUMENT, I WILL DEAL WITH IT!) The RSPB’s conduct directly equates to ‘directed surveillance’ as defined in RIP(S)A 2000, s1(2), namely covert, non-intrusive surveillance undertaken for the purposes of a specific operation or a specific investigation in such a manner as is likely to result in the obtaining of private information about a person. The same section (at s1(8)(a)) additionally provides that ‘surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’. Meanwhile, ‘Private information in relation to a person, includes any information relating to the person’s private or family life’ (s1(9).

The term ‘equates to’ is not chosen lightly. This is because the RIP(S)A further provides that conduct amounting to directed surveillance shall be ‘lawful for all purposes if authorised’ (s5(1)) and that such an authorisation can only be issued by a ‘designated person’ (s6) within a ‘relevant public authority’ (s8). Inspection of s8 reveals that ‘relevant public authority’ does not include the RSPB. The RIP(S)A definitions for conduct amounting to covert directed (and intrusive) surveillance clearly state that such definitions apply only for the purposes of that Act (s1). Covert investigative conduct outside the RIP(S)A is not ‘surveillance’ within the meaning of the Act.

One initial view therefore might be that the RSPB’s covert investigative conduct as a ‘non-public authority’ takes place outside any statutory regime and therefore outside any European Convention on Human Rights (ECHR) safeguards. This view would mean that all the purportedly ECHR-compliant provisions of the RIP(S)A 2000 vis a vis ‘directed surveillance’ do not apply and are non-enforceable against the RSPB, meaning that their acquisition of private information about persons via covert video recording (in these cases the images enabling the identification of the alleged offenders) did not require to be authorised and would ultimately be admissible under the Scots law of evidence as no more than ‘irregularly’ obtained. This cannot in my view be correct, and I infer from their reference to ‘not authorised’ in their letter that the COPFS agree with me. Here’s why.

Strict adherence to this view creates the anomaly, indeed absurdity, that if it were Police Scotland covertly placing the video data-capturing equipment in identical circumstances to the RSPB for the same purpose (prevention of crime), an authorisation under s6 of the RIP(S)A, issuable only after strict considerations of the investigation or operation’s necessity and proportionality would be required, with the very real risk that if not issued, the evidence would be rendered unlawfully obtained and therefore inadmissible. Police Scotland have not been immune to severe censure for failure to adhere to RIP(S)A’s authorisation matrix (David Moran & Others v Police Scotland, IPT/15/602/CH, IPT/15/603 CH, IPT/15/613/CH, IPT/16/263/CH, IPT/16/264/CH, IPT/16/387/CH) It seems unthinkable therefore, that even before reading the Human Rights Act 1998 alongside the RIP(S)A, evidence obtained via covert investigative activity outside the RIP(S)A mechanism and safeguards would be considered lawfully acquired. If it were, Police Scotland would simply be able to ‘contract out’ of their ECHR-compliance obligations regarding covert surveillance by allowing non-State actors such as the RSPB to undertake it for them when it suited.

European Human Rights Expectations

Unsurprisingly, the European Court of Human Rights (ECtHR) has made decisions that acknowledge this potential circumvention. Simon McKay, author of Covert Policing Law and Practice (OUP, 2011) outlines in Chapter 10 (Private Surveillance) the decisions in MM v The Netherlands (2004) 39 EHRR 19 and Van Vondel v The Netherlands (Application No 38258/03, 25 January 2008) holding that investigating authorities cannot evade their ECHR responsibilities by the use of evidence obtained by non-State or ‘private’ agents. Crucially, in MM the police and the public prosecutor ‘made a crucial contribution’ to the eventual criminal proceedings, thus engaging the responsibility of the State. It is highly likely that the COPFS, as Scotland’s public prosecutor, would be held as being similarly engaged and therefore responsible for flaws in the human rights compliance of surveillance undertaken outside the RIP(S)A. It is this consideration of the implicit failure of the RSPB to adhere to the RIP(S)A, by seeking authorisation from Police Scotland to undertake ‘directed surveillance’ on an agency basis, that may have influenced the COPFS decision not to prosecute in the recent cases referred to. In my view the COPFS would be correct to consider this, as it seems unacceptable that public authorities are bound by the RIP(S)A compliance safeguards whilst bodies such as the RSPB remain currently exempt.

In the absence of a rapid amendment to the RIP(S)A, a simple solution to this problem, if no one has already thought of it, would be for the RSPB to engage Police Scotland in the practical implementation of covert investigative conduct, with Police Scotland taking all the relevant requisite steps under the RIP(S)A to ensure ECHR compliance and thus the lawfulness of the conduct. This might involve no more than the secondment of a Police Scotland operative to ‘supervise’ the RSPB investigation teams, but with the necessary RIP(S)A authorisations in place.

When considering the notion of amending legislation, a question arises as to whether the RSPB could or should be added to the ‘relevant public authority’ taxonomy in the RIP(S)A, s8(3) so as to enable them to authorise their conduct in ECHR-compliant terms. Regrettably, due to my favourite bugbear (legislative drafting), this could be problematic: section 8(4) provides that the Scottish Ministers may by order amend section 8(3) by adding or removing a ‘public authority’, but there is no provision for adding entities such as the RSPB that fall outside the ‘public authority’ definition.

At this point it can be noted that nailing down a set definition for ‘public authority’ appears beyond the UK and Scottish legislatures and is purpose-dependent.

The RSPB does not constitute a public authority for the purposes of the Freedom of Information (Scotland) Act 2002, Schedule 1, but can be designated as such under that Act (s4 and s5(2)). This point is worth expanding upon: s4 empowers the Scottish Ministers to amend Schedule 1 by adding or removing particular ‘bodies’, with s5(2) further empowering them to ‘designate as a Scottish public authority for the purposes of this Act any person mentioned in subsection (2) who (a) is neither for the time being listed in schedule 1 nor capable of being added to that schedule by order under section 4(1); and (b) is neither a public body nor the holder of any public office’. Subsection 2 provides that such persons include, inter alia, those who ‘appear to the Scottish Ministers to exercise functions of a public nature’. It seems strange that legislative drafting has enabled this here, but not in the RIP(S)A.

A further argument for applying the RIP(S)A – Domestic Human Rights Expectations

The arguably overarching Human Rights Act 1998 mandates: that courts and tribunals must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (s2); that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (s3) and that “public authority” includes—(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature (s6(3)(b)).

The first point therefore is that the RIP(S)A must be read and given effect in a way that is compatible with the Article 6 right to a fair trial and the presumption of innocence and the Article 8 right to respect for private and family life, home and correspondence. One possible outcome of this is that the RIP(S)A cannot be read in such a way as to render directed surveillance by bodies not designated as relevant public authorities and that a section 4 declaration of incompatibility might be required. Another is that section 8 could be ‘read down’ to include all bodies exercising functions of a public nature.

Examples abound of jurisprudence and associated academic commentary on what constitutes ‘functions of a public nature’. To my knowledge, and subject to the caveat that airing a hasty academic legal opinion can leave gaps in analysis, covert investigative information acquisition equating to covert directed surveillance under the RIP(S)A conducted by a registered charity has not yet been the subject of domestic or European legal challenge. Given the Strasbourg jurisprudence already mentioned however, I am of the view that such conduct would be construed as ‘of a public nature’ and would render the RSPB a ‘public authority’ for RIP(S)A purposes. Put another way, I believe that the RIP(S)A would be ‘read down’ to incorporate conduct amounting to covert directed surveillance on the part of any body undertaking conduct amounting to covert investigative information acquisition that assists the State (in this case the COPFS) in bringing a prosecution. This would undoubtedly require the RSPB and similar bodies to seek an authorisation under the RIP(S)A by involving Police Scotland as outlined previously.

Conclusions

What we are left with then, is that the COPFS, when weighing up whether or not to lead evidence comprising recorded video data acquired covertly for investigative purposes by an organisation not currently recognised in law as a public authority, have to consider the effect of two distinct regimes. The first, ‘older’ regime is that within the DPA, in which the RSPB as a lawful registered data controller, processes data acquired covertly for a purpose exempted under s29 from a requirement to be fair and lawful and which will therefore be processed lawfully in the course of prospective legal proceedings and appears admissible. The second, ‘newer’ regime is that framed by an inadequately drafted RIP(S)A read, as it must now be read, with the relevant provisions of the Human Rights Act 1998. On this reading, the RSPB cannot currently lawfully undertake conduct amounting to lawful directed surveillance.

Having revisited the limited available published information surrounding the Colin Marshall case (heard in 2006), I am of the view that the Sheriff erred in admitting evidence of what may have started out as a nest surveillance, but what ended up as being directed surveillance of Marshall over 3 nights in 2003. There is no indication that the RIP(S)A was even considered. The second case, that of Mutch, similarly involves no recorded discussion of the RIP(S)A or the Sheriff’s view on its applicability. It is my respectful view that the Sheriff’s decision here was courageous and taken for public policy reasons, but that it either ignored or circumvented the applicable law (the RIP(S)A) albeit for laudable reasons. It is a disingenuous and ultimately untenable position to assert that an ‘RSPB investigation team’ (their description, not mine) monitors nests as part of a survey and captures/processes video evidence of criminality as a ‘by-product’ of that survey. It is my belief that the COPFS feel the same and are therefore unfortunately bound to discount video recorded evidence if it has been obtained by investigation teams not listed as public authorities in RIP(S)A s8. Consequently, in my view, the answer lies in ‘contracting’ directed surveillance of vulnerable sites back to Police Scotland, seconding Police Scotland personnel to supervise RSPB investigation teams, or in the longer term amending the RIP(S)A after suitable public consultation.

It is understandable that champions for wildlife protection will feel frustrated at inconsistencies in the bringing of criminal proceedings and that courts represent the best and most transparent arbiter on matters of admissibility. However it is not the role or function of Scottish courts to decide whether or not to prosecute. That thankfully wholly independent decision is for COPFS. Having weighed the evidence that has been obtained outside the requirements for lawful, authorised, directed surveillance conduct and therefore outside the guaranteed ECHR compliance, the COPFS are probably right to err on the side of caution and avoid risking widespread public censure for abuse of process. Bodies such as the RSPB, in the short-term absence of them being added to the RIP(S)A mechanisms, should engage with Police Scotland to ensure lawful RIP(S)A and Human Rights Act 1998 compliance. In the mid- to longer term, those in government entrusted with wildlife protection should be lobbying vigorously to have the RIP(S)A amended to incorporate the RSPB, in the same manner as SEPA. Wildlife crime is too serious not be prosecuted, but the overarching requirement under ECHR Article 6 that proceedings be fair mandates that evidence acquisition must be lawful, on a legal basis, necessary and proportionate.

Right Process in Sharing Nile Water Resources: The Grand Ethiopian Renaissance Dam

The World Water Congress is held under the auspices of the 50 year old International Water Resources Association (IWRA), in collaboration with governments. The Congress attracts hundreds of academics, practitioners, policy makers and members of civil society organisations working on water related issues at global, regional and national levels.

The 16th Congress was hosted by the Mexican Government in Cancun between 29 May and 3 June 2017, under the theme ‘Bridging Science and Policy’.  After intensive discussions in the forms of plenaries, high-level panel and special sessions on various aspects of water followed, including: the water-energy-food nexus; water and the Sustainable Development Goals; water and business; water for peace; water policy and governance; water and climate and science and international law. The Congress then adopted the Cancun Declaration (PDF), entitled ‘A Call for Action to Bridge Science and Water Policy-Making for Sustainable Development’.

The Declaration:

calls for urgent mobilization of knowledge generators, governments, donors, professionals and civil society to join their efforts to achieve the 2030 Agenda for sustainable development. Water is one of the most crucial needs for the Earth and all of its inhabitants. The holistic ambition of sustainable development in a changing world needs multidisciplinary knowledge, evidence based policies, involvement and participation of everybody for a more effective implementation of solutions.

One of the Special Sessions (SS 35) held during the Cancun Water Congress was on ‘Multi‐disciplinary perspectives on the Grand Ethiopian Renaissance Dam (GERD) and the future of water resources management and development in the Eastern Nile Basin’.  Hosted by the Stockholm International Water Institute, Northumbria University, the University of Aberdeen, and International Centre for Water Cooperation (ICWC), this Special session covered seven papers in two separate sub-sessions.

The first part dealt with highly technical and political aspects of the subject. Experts from Oxford University, Harvard and ICWC looked at the construction, reservoir filling and operation of the Ethiopian mega dam on the Blue Nile often referred to as the GERD (which is set to generate 6000 megawatt in electricity) from hydrological, economics and political science perspectives. The second part of the Nile Special Session was primarily international law oriented.  International water law experts, practitioners and academics gave three papers exploring the legal developments in the Nile basin associated with the GERD. Chaired by the Editor-in-Chief of Water International (a prominent journal in the field), and involving panellists from the World Bank, representatives of policy makers and researchers,  a meaningful discussion was held around the key opportunities and challenges concerning the sharing and preserving of Nile water resources in general and managing the controversies surrounding the GERD in particular. All papers entertained the view that if Nile riparian countries (and particularly the three eastern Nile basin countries, Ethiopia, Sudan and Egypt) cooperate on the basis of scientific studies and globally accepted legal and policy standards, they will all benefit without sustaining any significant harm.

GERD

One of the papers presented in the Nile Special Session was titled ‘The Grand Ethiopian Renaissance Dam and Procedural Equity’. In this paper, the writer of this blog post and Professor Alistair Rieu-Clarke (from Northumbria, School of Law, formerly Dundee Centre for Water Law and Policy), building upon previously published work (PDF),  explored three key aspects of the role of procedural equity in relation to the GERD and the Nile more generally.

The first aspect is what Thomas Franck, an eminent public international lawyer, calls ‘procedural legitimacy’ or ‘right process’.  This aspect of equity (or fairness) is measured by the determinacy, validation, coherence and adherence of legal arrangements made by states. The concept of ‘right process’ pre-supposes that such a process is established and implemented through cooperation, consent and good faith from all concerned.

The second is that these key elements of ‘right process’ are imbedded into international watercourses law as enshrined in the UN Watercourses Convention 1997 (UNWC). This includes the duty to negotiate in good faith, the duty to notify and consult on planned measures, equitable participation, the duty to take due diligence measures and settle disputes in a peaceful manner.

In light of such theoretical and normative frameworks the presenters examined old Nile treaties and post-1990 endeavours, and concluded that Nile colonial-era treaties do not provide procedural equity, the essence of which is the establishment and implementation of a ‘right process’. In contrast, the newly emerging political and legal frameworks such as the Nile Basin Initiative (NBI) and the Cooperative Framework Agreement (CFA) on the sharing of Nile water resources are broadly in line with the UNWC concerning the establishment of a right process for Nile riparians. However, the CFA has only been signed by SIX Nile riparian states and ratified by THREE, whilst being strongly opposed by Egypt and by Sudan. This might be seen as an obstacle to establishing a right and equitable process. It was reflected that the participation of all concerned is key for promoting a right process, and the absence of Egypt and Sudan in the CFA process can be a serious impediment to having a right process in the Nile basin. It was equally maintained that procedural equity accommodates neither making non-negotiable claims such as ‘historic water rights’ and ‘veto powers’ over water uses by some riparian states, nor does it endorse blocking a right process of cooperative arrangement by a state or a group of states. This appears to be in line with the spirit of the UNWC.

The paper then went into the details of the third aspect of procedural equity, namely the application of the elements of a right process to the GERD. This would include the issues of prior notification and consultation, cooperation during the GERD filling and operation of the dam, and benefit sharing among the three eastern Nile basin countries (Ethiopia, Sudan and Egypt).  It was highlighted that, despite some significant endeavours as mentioned earlier, the absence of a Basin-wide legal framework in the Nile from which we can deduce a right process is a major challenge. Such an absence does not imply the non-application of customary principles of international law to the question of resource sharing among Nile basin riparian states. Among the key principles of international water law which are relevant to the issues related to the GERD include the principles of equitable participation, due diligence and reciprocity, as widely endorsed by the International Court of Justice and the Permanent Court of International Justice.

16th Congress Panel

The paper primarily relied on the right processes envisaged in the Declaration of Principles (DoPs) agreed by Ethiopia, Sudan and Egypt in March 2015. The paper concluded, based upon the DoPs, that:

1) The principles of cooperation, information exchange, confidence building and peaceful settlement of disputes must constitute the basis for applying a right process with respect to the GERD.

2) The detailed commitments such as cooperating on dam filling, dam operation and benefit sharing provide clearer commitments of a right process.

3) The institutional framework that has emerged in the process resulted in the nearly regular tripartite negotiations conducted through the Technical National Committee in which the three countries are equally represented and backed by relevant ministerial and head of state/government interventions move towards a right process. (That framework has been supported by the establishment of an International Panel of Experts which was entrusted to create confidence building through conducting scientific studies and recommending solutions to the concerns of the parties. The use of two French consultancy and firms and a British legal firm to help facilitate dialogue and finalise detailed agreements is arguably another example of a right process informed by science and appropriate studies.)

It may be argued that the continuous dialogue and negotiations by the parties in accordance with the DoPs and subsequent commitments and the further actions taken by them suggest that there is a coherent, valid, and applied right process with respect to resolving the crucial issues surrounding the GERD.  There is also evidence, as clearly recognised by the DoPs, that the parties involved are negotiating in good faith. However, there are delays in finalising things, particularly regarding the studies sought to be conducted by foreign firms. There are also substantive differences that arise in the course of such a right process, which suggests that a right process cannot be fully divorced from a right substance or substantive equity.

The paper concluded that right process is as important as right substance. Although the Nile lacks a basin-level permanent right process, the NBI and the CFA appear to be heading in the right direction subject to continuous good faith negotiations among all parties. The Blue Nile case study demonstrates that good faith negotiation is a constantly evolving process. Clearly, the developments associated with the GERD have brought positive and significant dynamics in prompting procedural equity (or right process) compared with old Nile treaties. Although the parties to the DoPs are working to implement their commitments, the pace of the process could be improved. However, such developments may not be sustainable unless the GERD-related endeavour is seized as an opportunity to foster Basin-wide permanent institutions and processes that are crucial not only to promoting equitable utilisation of Nile water resources but also to achieving the Sustainable Development Goals that the Cancun Declaration rightly emphasises.

XVI World Water Congress