Access to Justice, Civil Liberties, Legal Aid, Legal System, Scots Law

Civil Legal Aid in Scotland: a vital system that is struggling

A recent open letter to the Scottish Legal Aid Board and the Law Society of Scotland’s Legal Aid Committee highlights the very real problem with civil legal aid in Scotland. The open letter concerned the fees paid by SLAB for work undertaken by the firm in a case before the UK Supreme Court. The case concerned the position of siblings in the Children’s hearing system and whether they should have the designation of a “relevant person”. In the end, the Supreme Court decided that they should not have the formal designation of a “relevant person”, but highlighted the importance of their involvement in the proceedings. That is just by way of background; what the solicitors complained of was the fee paid to them by the Scottish Legal Aid Board. They wrote that their fee was abated to just over £3,000. That may sound like a lot, but it is not at all for all of the work that would have went into preparing for a case in the Supreme Court which was heard over a period of two days.

Solicitors have been complaining about legal aid payments for a long time. Most of the recent public complaints have related to the criminal legal aid system; however, many of the same issues exist in the civil legal aid system as well.

Most civil litigation in Scotland takes place in the Sheriff Court; where solicitors typically do all of the work without the involvement of Counsel (although in more complex cases sanction can be sought to involve Counsel). In most civil cases the fees that solicitors receive are “block fees”; that is, a fee is payable for certain work no matter how long it takes. Each block of work is assigned a number of “units” and then there is a unit fee. The fee is calculated on the basis of units x unit fee. The current unit fee, applicable from April 2019, is £21.63. This unit fee was first set in 2003 at the rate of £19 per unit. So in the space of 17 years the unit fee has risen by £2.63 (or 13.84%). Averaging out the 13.84% increase over the past 17 years it gives an average of 0.84% per year (this is artificial because there hasn’t been an annual increase).

Inflation has been running considerably higher than 0.84% every year since 2003; using the Bank of England’s inflation calculator, £19 in 2003 would be worth about £30.27 in 2019 (the latest year that this calculator will allow you to calculate for). Again, it’s a rough estimation as it averages out inflation across the period. The calculator has worked it out on the basis of an average inflation rate of 3% per year.

What this shows us is that there has been a year-on-year real terms cut in the unit price paid by SLAB to solicitors for work undertaken; and a considerable one at that. Now, it would be fair to take account of the significant reductions in public spending that have occurred since 2010. However, assuming that the unit price had increased every year in line with average inflation between 2003 and 2010; and thereafter been a frozen until the 3% increase in 2019, the unit price would be in the region of (again, using the Bank of England’s inflation calculator) £24.13 today; higher than the £21.63 that it currently is (there is roughly an 11.5% difference).

Why should non-lawyers care about this? This cuts to the heart of our democracy. One of the central tenants of democracy is the rule of law; that doesn’t just apply between citizens and the state, but also between individuals and businesses. Without the ability to enforce rights (whether they be statutory rights or rights created by contract) they may as well not exist. Moreover, it is a disincentive to honour rights if you know that the other person is not going to be able to enforce those rights.

The reality is that more and more solicitors are withdrawing from providing legal aid services. They cannot afford to provide them. Lawyers typically to have an altruistic streak to their personality, but equally law firms are businesses and they need to make a profit. If law firms are not making a profit on their legal aid work then their privately paying work is having to subsidies that; it reaches a point where it becomes so uneconomical that firms either stop offering legal aid services altogether or they cannot continue to trade and close their doors (especially where the majority of their work comes from legal aid cases). This harms the rule of law; it makes it harder for people to find solicitors who can act for them if they’re unable to pay privately. The current concept of legal aid came into existence alongside other key aspects of our welfare system; it is a fundamental part of our welfare system.

There are some firms that make a considerable amount of money from the legal aid system. The annual report from SLAB shows what every single firm has been paid from the fund each year. However, there are a few things that those figures don’t reveal. Firstly, in the case of civil legal aid, firms are only paid at the conclusion of the case (although there have been some temporary changes made via the Coronavirus legislation allowing interim payments to be made; but this is temporary and does not reflect the usual position). Civil cases can last years; meaning these figures will inevitably include work that has been done in previous years. Civil cases lasting years has nothing to do with solicitors seeking to increase the fees that they get; that’s just not how it works. The delays often arise out of issues elsewhere in the system. Moreover, as indicated, most Sheriff Court work is paid on a block fee basis rather than an hourly basis; therefore, there is often no incentive at all for solicitors to “spin” things out to increase fees.

What should also be remembered is that these are payments to a business; like any other business. From those fees, the firms require to pay overheads. Every business has to pay overheads, but it is a factor that should not be overlooked when assessing how generous legal aid payments are: the overheads for running a solicitors firm are high. Many of these overheads relate to the highly regulated environment in which we (rightly) operate.

Finally, the firms making the most from legal aid will be doing “bulk work”; it probably accounts for the majority of the firm’s workload. The average cost to the taxpayer per case has fallen; so these large payments will also be coming from a large number of cases.

Our private rates significantly outstrip the amount we’re paid for legal aid. However, generally speaking the profession is not asking to be able to bill the taxpayer what we bill our privately paying clients. We recognise that the rates paid out of taxpayers’ money will be less; however, what we need is a system where the rates are increased more than a handful of times in the best part of 20 years. The system cannot continue to sustain the real term cuts of that it has seen historically. The system provides good value for money: our accounts are closely scrutinised and we need to justify every single charge to SLAB. Practitioners offering legal aid services are regularly subjected to “peer review” process; which looks at whether we’re complying with the technical requirements as well as the level of service being offered to the client. The peer review process is far from a box ticking exercise; our peers are tough but fair – if the standard of service offered is not up to scratch then we’re re-assessed and ultimately we can be stopped from providing legal aid if we fail to meet the standards.

The Scottish Government commissioned an independent review of the legal aid system in Scotland; it has reported and made many good recommendations about how to reform the system for the benefit of the public. On fees it concluded that it had seen insufficient evidence to support a general increase in fees; a conclusion that was criticised (and ultimately ignored, to some extent, by the Scottish Government who provided a general increase in 2019 anyway). The Scottish Government also established the “Legal Aid Payment Advisory Panel”; its work can be seen on the Scottish Government website. After the election next year, whoever forms the Scottish Government should prioritise taking forward the recommendations and conclusions of the review and the advisory panel.

Legal aid is a vital service and it is worth fighting for; politicians know that there are no votes in legal aid and so do not treat it with the priority that it deserves. In some respects the system in Scotland is in a much better place than the system in place in England and Wales; the Scottish Government hasn’t removed whole areas of the law from the scope of the civil legal aid system in the way that the UK Government has in England and Wales. However, that is not an excuse for refusing to deal with the issues in the system that exists here in Scotland (and those go beyond just the rates of pay) – this is an area within devolved competence; “at least we’re better than England” shouldn’t be an answer to criticism on any area of devolved responsibility – and legal aid should be no exception to that general proposition. Don’t let the Scottish Government dwindle the system away: it’s part of the safety net that exists and you never know when you may need it.

Civil Liberties, Constitutional Law, Coronavirus, Criminal Justice, Criminal Law, Human Rights, Politics, Scots Law

The lockdown and public protest

On 25th May 2020 the world was shown a video of a 46-year-old black man, George Floyd, being restrained on the ground by a number of police officers in Minneapolis. That video showed one police officer kneeling on the back of his neck for almost nine minutes. Mr Floyd died and the police officers involved have been charged with a range of offences, including one officer being charged with murder. The footage has rightly caused anger around the world. This anger has resulted in riots happening in various places around the United States of America and protests have been held around the world in support of the Black Lives Matter campaign. Protests have been planned for the forthcoming weekend in Scotland.

The first half of 2020 has seen governments across the world try to deal with COVID-19, a novel coronavirus first seen in the Wuhan province of China in late 2019. Figures available at the current time place COVID-19 as the leading cause of death globally in 2020 so far. Governments throughout the world have been responding to the virus by placing varying degrees of restrictions on those who live within their jurisdiction in an effort to try and contain the virus. Whether these restrictions are the best way to go about achieving this aim is something that has been debated since the restrictions started to come in, but this post is not going to consider that question. What this blog post aims to do is consider how the right of assembly in Article 11 of the ECHR interacts with the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the lockdown regulations”).

The lockdown regulations were made by Scottish Ministers on 26th March 2020 under powers conferred upon them by the Coronavirus Act 2020; they came into effect immediately. The Scottish Government has also published guidance on the lockdown and I have considered the interaction between the law and the guidance before (mainly in the context of the powers of the police and the approach to policing adopted in some parts of the United Kingdom). The lockdown regulations are what is known in law as “subordinate legislation”; that is, they are laws that have been made not by Parliament itself, but by government ministers exercising powers delegated to them by Parliament; in this case, it is power delegated to Scottish Ministers by the United Kingdom Parliament. When ministers are making subordinate legislation they cannot exceed the authority given to them by parliament. That is to say, if subordinate legislation made by Ministers includes something which Parliament has not given them the power to do then the courts can strike down the subordinate legislation to the extent that it exceeds Ministers powers (i.e. it is outside the Minister’s competence)

In Scotland, under section 57(2) of the Scotland Act 1998, Scottish Ministers do not have the power to make any subordinate legislation where it is incompatible with the rights under the European Convention on Human Rights (i.e. those rights listed in Schedule 1 to the Human Rights Act 1998). That includes both the right to freedom of expression (Article 10) and the right to freedom of assembly (Article 11). The lockdown regulations therefore always have to be read in a way that is compatible with the convention rights and where they cannot be read in compatibly with them, they will be outwith the competence of Scottish Minisers and “not law”.

Regulation 6 of the lockdown Regulations prohibits all gatherings in a public place of more than two people except in a list of specific circumstances. None of which would reasonably apply to a public protest. It is an offence to fail to comply with Regulation 6; however, Regulation 8(4) of the lockdown regulations provides a defence to an infringement of a Regulation 6 where the person has a “reasonable excuse”. Most will, by now, be familiar with the “reasonable excuse” provisions, but mainly in connection with Regulation 5, which provides that no person may leave the place that they are living except with a reasonable excuse. In respect of a public protest there are two parts of the lockdown regulations in play: there is Regulation 5, which comes into play when a participant leaves the place that they are living and then there is Regulation 6, when the arrive at the place where the protest is to take place.

In this post, I am only going to focus on the relationship between Regulation 6 and Article 11. That is because, if the protest would be lawful under Regulation 6 then it would follow that a person leaving the place where they live to attend the protest would be a reasonable excuse. To say otherwise, would be an absurd reading of Regulation 5 in the context of the lockdown regulations as a whole.

Article 11

This Article provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others. However, as with nearly all of the convention rights it is not an absolute right and can be subject to restrictions which are “prescribed by law” (for example Regulation 6 of the lockdown regulations) and which are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

The European Court of Human Rights has held that the exceptions in Article 11 are to be construed strictly and that only convincing and compelling reasons can justify restrictions. The restrictions must be in the pursuance of a legitimate aim and must be proportionate to that aim. The government has to be able to show a rational connection between the restrictions and the legitimate aim being pursued.

The lockdown regulations have been made for a specific purpose, which is set out in the preamble to the lockdown regulations which states that they have been “made in response to the serious and imminent threat to public health which is posed by the incidence and spread of coronavirus in Scotland.”

The Government has been clear throughout that large public gatherings of people pose a particular risk in respect of the spread of coronavirus. However, there are a number of things that need to be consider. Is the complete ban on public gatherings as included in Regulation 6 proportionate to the legitimate aim being pursued? Is there a less severe restriction that could be placed upon people? Also, there is, I would suggest, a difference between indoor and outdoor gatherings (indeed, the Government’s own guidance draws that distinction on meeting family members). Another relevant factor, I would suggest, is that a public protest is different in nature to a gathering for a football match or a music concert.

I have previously expressed concern that the apparent complete ban on public protest is something that is unlikely to be compatible with the convention rights, even in the current circumstances. For example, a protest which takes place in a large open space where everyone is staying at least 2m away from people who are not members of their own household and where appropriate face coverings and other protective clothing (such as gloves) are being worn may well present a difficulty for the Government. That is not to say that it would be impossible for the Government not to show that banning such a protest is a proportionate means of meeting their legitimate aim; only, that it will be considerably more difficult than, say, defending the ban as it relates to sports fixtures. However, on balance, there is, I think, a strong basis for suggesting that the Government would ultimately be successful in defending the current position if it was forced to, but in doing so it would be facing a reasonably strong argument that its actions were unlawful.

The subject-matter of the protest also has, I think, to play a part in the balancing exercise as well. Is it a protest that could reasonably be delayed to a point where the restrictions are less stringent than they are now or would the effectiveness of the protest be undermined if it were to be delayed? Clearly, the black lives matter campaign is front and centre in the global news cycle at the moment and that is, I think, a factor which would need to be weighed into the consideration. However, equally, the campaign is one that has (sadly) been going on for a very long time and is almost certainly going to need to continue beyond now. It is a depressing reality that there continues to exist in our world a significant degree of racism and racial prejudice. On balance, I’m not convinced that an urgency argument would necessarily tilt the balance against the government.

It may also be worth noting that the High Court in England and Wales refused interim injunctive relief in a judicial review in a challenge brought to the English equivalent provisions and brought with the aim of enabling a mosque to open for Friday prayers at the end of Ramadan. That case was concerned with Article 9 (freedom of thought, conscience and religion), but it is worth of note. In that case Mr Justice Swift did not think that “there [was] any realistic likelihood that the Claimant’s case on Article 9 will succeed at trial”. There are, of course, important difference between the cases: (1) the concern different convention rights; and (2) the circumstances are quite different – one concerns indoor gatherings while the present context is concerned with outdoor gatherings. Furthermore, it deals with different (albeit substantially similar) statutory provisions, but with the same underlying reasoning. Despite his findings, the judge granted permission for the judicial review to proceed. There are a number of challenges in England and Wales to the lawfulness of the lockdown generally, or to particular sets of circumstances. Some, on a first appearance, are stronger than others.

Reasonable Excuse

One other matter that should be mentioned is the “reasonable excuse” defence to a charge of breaching Regulation 6. Regulation 8(5) provides the non-exhaustive list of reasonable excuses that we have all become very familiar with over the past weeks. None of the examples listed would cover a public protest; however, it is not a complete list. It would be open to argue that a public demonstration on a matter of public interest is something that falls within a “reasonable excuse”. Whether the court would accept that it was a reasonable excuse standing the reasons behind it is another question altogether. I’m not convinced that a court would find the protest as a reasonable excuse to be in a gathering of more than two people outside of the circumstances provided for in Regulation 6.


I am not going to say that the protests definitely are legal or illegal; that is not something that can be said with complete certainty and would, ultimately, be a matter for the courts to determine. However, while I have some concerns that a complete blanket ban on all public protests might not be convention compliant, the court is only going to be concerned with whether restricting the protest concerned was or was not a breach of convention rights. On balance, however, I think it likely that the protest would be a breach of Regulation 6 and that the interference with the Article 11 rights would be considered a proportionate means of pursuing the legitimate aim of reducing the spread of COVID-19 and that it is rationally connected to that aim. It is not the job of the courts to decide on policy, only whether the policy is lawful. There may be alternative ways of achieving that aim and the court may, if it were the decision maker, have favoured one of those other ways; however, that is not the test. If the policy decision is lawful, then the existence of another decision that the court would have preferred is irrelevant. I may, of course, be wrong on both of these matters. The issues are complex: the right to freedom of assembly is a vitally important right in a democracy, but the circumstances in which we find ourselves are truly extraordinary.

I am not going to say whether people should or should not participate in a protest this weekend. That is a matter for them. If people do attend a protest in Scotland this weekend they need to consider that doing in doing so it is likely that the will be committing a criminal offence. Equally there may be a defence to that offence or grounds to challenge the lawfulness of the regulations in terms of their compatibility with convention rights. There are processes for dealing with such arguments should anyone ultimately be prosecuted and wish to take the argument. However, they should also consider that there is no guarantee, or even a strong prospect, of those defences or challenges succeeding. I cannot, as a solicitor, encourage people to break the law.

The Scottish police have, generally speaking, handled the policing of the lockdown far better than their colleagues in other parts of the United Kingdom. What action they will take is, of course, something for them to consider. Whether they would try to breakup a protest that was peaceful, socially distanced and in which the participants were taking all reasonable precautions not to spread the virus is something that I wouldn’t like to express a view on, but I would hope that they would approach the situation proportionally taking into account that the issues are very different to, for example, the gatherings that were seen last weekend around Scotland. The Chief Constable indicated today at the Scottish Governments briefing that Police Scotland had been working with some of those involved in the protests this weekend; I would encourage (for what it is worth) anyone organising a protest to engage constructively with Police Scotland. I would also encourage anyone who attends a protest to approach any engagement that they have with the police (whether that be Police Scotland or the British Transport Police) in a courteous and constructive manner.

It is not just the protest itself that needs to be considered, but how people are getting there. The use of public transport and people travelling from some distance away to attend the protest is all something that needs to be factored in. An increased number of people using public transport to get to the protest is likely to increase the risk to those who work on the transport system and also to those who are using the transport system to get to work that they cannot do from home (in particular, NHS staff). People travelling from far and wide also, one would assume, comes with risk of them becoming carriers of the virus which could result in increased numbers of infections throughout the country. These are considerations that should not, in my view, simply be dismissed or minimised. They are very real concerns. The basis of the government’s restrictions on gatherings is to limit as much as possible contact which is likely to enable the virus to spread within the community.

Finally, none of the above should be taken as formal legal advice. It is not intended as such; it is merely a consideration of some of the issues that arise. If I were to write a full appraisal of the matter, fully referenced with authority, this post would be far longer than it already is. This blog post has gone through several iterations and when I started to write it I did so with no clear idea where it would end up; such are the complexity of the issues at hand.

English Law, Legal System, Scots Law, UK Constitution

Coronavirus and the law: divergence between Scotland and England

I have written before on the problems that have arisen in policing the coronavirus “lockdown” from the conflation of law with government guidance. Those issues became relevant again at the weekend when the Prime Minister announced some changes to the lockdown guidance as it applies to England. There have been disagreements about the guidance and which guidance people should follow: the UK Government’s guidance or the guidance from the devolved administrations. In a purely Scottish context, following the new guidance from the UK Government would not be advisable as following some aspects of it may lead to you committing a criminal offence in Scotland.

As the policy positions of the devolved administrations and the UK Government have diverged, the Scottish Government has been encouraging people from England not to travel to Scotland.

The new regulations that apply in England (from today) were made yesterday. I have spent some time considering how the new English regulations interact with the Scottish regulations. Just how can authorities in Scotland deal with people who have travelled from England to Scotland? I foresee some very real problems here.

The starting point is Regulation 5 of the Scottish regulations. Regulation 5 sets out the restriction on movement. In terms of Regultion 5, a person is not permitted to leave the place where they are living, except to the extent that a defence is available; that defence is contained in Regulation 8(4). Reading the two together, it essentially means that a person may not leave the place where they are living without having a reasonable excuse. It is a criminal offence to fail to comply with Regulation 5.

The offence in Scotland relates to the act of leaving the place where you live. If you had a reasonable excuse when you left where you live then you have not committed an offence. On a literal reading of the regulations if you leave for a reasonable excuse and then stay out once you have completed whatever it was then no offence has been committed. Equally, if a person leaves where the live for a reasonable excuse together with a number of reasons that are not themselves be a reasonable excuse, no offence is committed.

The English regulations mirrored this position until 11am on 22nd April 2020, when their equivalent of Regulation 5 was amended to include the words “or be outside of”. Therefore, in England it became the position that if you stayed away from the place that you were living after your reasonable excuse for leaving had come to an end, you committed a criminal offence.

This issue is important when dealing with people who have traveled to Scotland from England. The Scottish regulations on movement of persons are entirely directed towards the act of leaving the place where a person lives. If a person left home with a reasonable excuse, they can theoretically stay outside for as long as they wish. If a person left home to buy food and then decided on their way home to sunbathe, then it appears that the act of staying out to sunbathe would not be a criminal offence.

It should be noted at this stage that things may not be as straightforward as that. It is likely that the courts will apply an objective test in respect of the reasonable excuse. A prosecutor may argue, and a court may accept, that there is a dominant purpose test (or similar) to be applied. If the trip to the shop was merely a ploy to facilitate the act of engaging in sunbathing, a court may well decide that no reasonable excuse existed at the point the person left home; and consequently, an offence was comitted.

If the Scottish regulations are entirely directed at having a reasonable excuse at the point a person leaves home; it is hard to see how the authorities in Scotland can adequately deal with people who have come from England to Scotland to do something that, had the place they live been in Scotland, would have constituted a criminal offence in Scotland. The offence is committed at the point the person leaves the place that they are living. In such a case, the act in question occurred in England and outside of the jurisdiction of the Scottish courts. I struggle to see how the Scottish courts could apply the law of Scotland to conduct which happened entirely in England.

Literal interpretations of legislation, whether primary or secondary legislation, is not the only way in which legislation may be interpreted. The courts could also seek to read into the regulations that Regulation 5 also covers being away from the place that a person is living by applying a purposive approach to the interpretation of the regulations. If the purpose of the regulations is to keep people at home as much as possible to help reduce and slow down the spread of the virus, then it wouldn’t be too much of a stretch for the courts to hold that staying away from home once the reasonable excuse has ended is also prohibited.

I don’t want to get into all the intricacies of statutory interpretation; as interesting as that may be, it would be far too long. Bennion on Statutory Interpretation (a book frequently consulted and cited when it comes to statutory interpretation issues) is in excess of 1,500 pages in length. However, although it is possible for the courts to read things into legislation; they can’t just go about reading words into legislation because they think there is a gap in the legislation that ought not to be there. It is not the job of the courts to legislate, only to interpret and apply the legislation. If the meaning of the provision is clear then that’s generally the end of the matter, even if the court does not think that’s what was intended by the provision. There is a distinction between inferring omissions and correcting a faultiness of expression where the literal reading produced an unintelligible result.

When it comes to absurdity, it is not so much concerned with whether the result itself is absurd, but rather it is concerned with whether applying the grammatical and ordinary sense of the words would lead to some absurdity, or some inconsistency with the rest of the instrument or would be repugnant to it. It’s this rule of statutory interpretation that, in my view, allows the inference that a person leaving the place that they live in order to visit a business that’s not required to be closed is a reasonable excuse; even if it doesn’t neatly fall within the non-exhaustive list. The contrary position would be absurd and inconsistent with reference to the rest of the statutory instrument.

If it is the position that being away from the place that a person lives does fall within the ambit of Regulation 5, then there is no difficulty in dealing with people who have traveled from England to Scotland and who are engaged in conduct which would, had they lived in Scotland rather than England, amounted to an offence. They are away from where they live and, in terms of the law of Scotland, they are so without a reasonable excuse. It would be irrelevant that had they been found in England in the same circumstances, they wouldn’t be committing an offence. Their presence in Scotland is all that would matter

However, if Regulation 5 does not include a person being away from the place that they live in addition to leaving that place, then there is a real problem for the Scottish authorities. The view which I have reached is that it is unlikely that Regulation 5 could be read so as to include being away from home as well as leaving home. That is a problem for the police in Scotland (although, a high degree of compliance with the Scottish Government’s “stay at home” message has undoubtedly helped) when dealing with people who do live in Scotland as well as when dealing with people who have come into Scotland from England. A change in Regulation 5 is probably advisable, even if neither of these problems are of a scale which would necessitate a change.

It goes without saying (or at least it should) that the above does not constitute formal legal advice; it’s merely an explanation as to how I formed the view that I have. No lawyer is correct all of the time and so I may, of course, be wrong.

Note: Post updated at 15:36 on 14th May 2020 to correct language that was unintelligible. The substance of the post has not changed.

Coronavirus, guidance and the law


Northern Ireland
Scotland (and the Scottish Amendment Regulations)
Wales (and the Welsh Amendment Regulations)
































Finding the balance: LAD Media Ltd -v- Informtion Commissioner

On 18th January 2017 the Information Commissioner exercised her powers under Section 55A of the Data Protection Act 1998, as modified by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), and served a Monetary Penalty Notice [pdf] on LAD Media Limited in the amount of £50,000.

LAD Media is a Greater Manchester based lead generation and data brokerage company operating in the financial services and debt and claims sectors.  The company had engaged in a direct marketing campaign sending 393, 872 SMS messages.  The numbers had been bought in from a third party and the contract between LAD Media and its supplier warranted that all of the numbers had valid consent for the purposes of direct marketing.  In fact there was not valid consent in place which enabled LAD Media to utilise them for marketing.

LAD Media appealed the penalty to the First-Tier Tribunal (Information Rights) on 6 grounds.  The Tribunal’s decision [pdf] records that it refused 5 out of the 6 grounds of appeal and allowed one ground of appeal.  The successful ground of appeal related to the amount of the monetary penalty notice.  The Tribunal reduced the amount from £50,000 to £20,000. In doing so the Tribunal has given some guidance on relevant factors in setting the amount of a Monetary Penalty, although, it was clear that it wasn’t being prescriptive.

Relevant considerations include:

  • The circumstances of the contravention;
  • The seriousness of the contravention (as assessed by (i) the harm caused, or likely to be caused, by the contravention; (ii) whether the contravention was deliberate or negligent; (iii) the culpability of the recipient, including reference to any steps taken to avoid the contravention)
  • whether the recipient is an organisation or an individual, including its size and sector
  • the financial circumstances of the recipient, including the MPN’s impact
  • Steps taken to avoid further contravention(s)
  • Any redress offered to those affected by the contravention

The Tribunal also stated, at paragraph 48, that it considers deterrence as a relevant factor and that this extends not only to deterring the recipient from further contraventions, but also to deterring others.

In the case of LAD Media, the tribunal took a number of factors into consideration; including that it was the only contravention of PECR and that it was the first time that the LAD Media had engaged in a marketing campaign of this nature.  The Tribunal was provided with LAD Media’s accounts for 2014, 2015 and 2016; it noted that at the time of the contravention there was a substantial increase in both turnover and profit.  It also noted that there was no evidence that LAD Media would go bankrupt if it had to pay the MPN nor what the real impact of paying a MPN would be (see paragraph 49).

At paragraph 50 the Tribunal noted that the lack of provision of full information to the Commissioner and the woeful lack of due diligence undertaken were aggravating factors.  Although, there is little indication as to how the Tribunal treated these aggravating factors in setting the £20,000 figure for the Monetary Penalty.

What does this case tell us?

This tribunal decision ought not to be slavishly followed by anyone; it does not bind the Commissioner or the First-Tier Tribunal.  However, it does provide some interesting and useful guidance as to the sort of matters that the Commissioner ought to be taking into account when determining the amount of a Monetary Penalty Notice.

On financial impact, it is clear that the Tribunal considers that the Commissioner ought to be considering what the impact of the penalty will be on the recipient’s finances; however, that should be taken in context with what it said about deterrence.  It suggests that while the financial circumstances of the recipient are a relevant consideration, they may not necessarily be determinative.  Recipients should probably expect any monetary penalty to be painful financially.

How the data controller responds to the contraventions in question may be of importance in mitigating against the amount of the monetary penalty.  Holding your hands up to a breach and taking steps to try and prevent future contraventions may well go in a data controller’s favour.  However, the Tribunal considered the level of due diligence taken by LAD Media to be an aggravating factor, so any steps taken following a contravention may well be outstripped by a failure to take adequate steps in the first place to prevent a contravention.

The Tribunal seemed unimpressed with the way in which LAD Media dealt with the Commissioner following the contravention; reference was made to a lack of full disclosure and this was noted to be an aggravating factor.  There may be a temptation to try and minimise things in the hope of minimising the extent of any financial penalty; however, this approach could have the opposite effect and result in an increased penalty.

Legal System, UK Constitution

There is only one law: British Law (or is there?)

Paul Nuttall MEP, Leader of the United Kingdom Independence Party, kicked off lots of discussion on twitter today with his suggestion that upon this fair island there is only one law and that it is British law.  Many people have lined up to correct Mr Nuttall’s understanding of law within the United Kingdom, while some people (and they are by far in the minority) have tried to argue that he is correct.  So, is there only one law in the UK?

I will assume for these purposes that Mr Nuttall was referring to the UK and that he was not ignoring the existence of Northern Ireland (Britain referring only to England, Scotland and Wales – the UK’s full title being the United Kingdom of Great Britain and Northern Ireland).  The United Kingdom is divided into three separate legal jurisdictions:  those of England and Wales, Northern Ireland and Scotland.  So far as the law is concerned each jurisdiction might as well be a foreign country.  Lawyers qualified in one jurisdiction are not permitted to practise law in any of the others (with a few minor exceptions, which I shall return to later) without first undergoing a process of re-qualification.  The legal systems are very different from one another (and the substantive laws are completely different in many key areas of law, such as the criminal law).

The separate nature of Scots law has existed throughout the lifetime of the political union between the Kingdoms of England and Scotland.  The treaties and Acts that gave effect to this political union preserved the separate Scottish legal system.  The systems have developed independently since the beginning of the political union (but have, at various times, influenced each other).  The historical development of Scots has been very different from that south of the border.  There has been a big influence from continental “civil” law (“civil” as in the legal system, not to be confused with “civil” as all the laws of the land that are not criminal – yes, it’s a trifle confusing!) including French and Roman Law (indeed, it is still a requirement to have studied the roman law on property and obligations in order to be called to the Bar in Scotland).

There are areas where the law overlaps to a great extent and these could be classed as “British Law”, but I suggest that this is the wrong classification (for reasons I shall come onto shortly).  Some examples of these include Road Traffic laws (although there are some divergences, particularly around the drink-drive limit); anti-terror laws, immigration laws, employment laws and company law (although, there are some differences here as well).  An example exception to the general rule that a lawyer qualified in one jurisdiction cannot practise law in another without re-qualifying would be in the case of employment laws.  A Scottish Solicitor could move to London (which, of course, is in England) and practise employment law from there within the Employment Tribunal and the Employment Appeal Tribunal without the need to re-qualify in England and Wales.  That is because the substantive law is the same and the Tribunals (at present) have UK-wide jurisdiction (and so lawyers from all of the three UK jurisdictions have ‘rights of audience’).

The employment law example doesn’t hold true for all of the examples given above of areas where the substantive law is the same.  Take road traffic laws and anti-terror laws as an example; these are matters of substantive criminal law and are dealt with in the criminal courts.  A Scottish Solicitor, couldn’t represent someone in a Magistrates’ Court charged with a driving offence, or in the Crown Court charged with an anti-terror offence.  Equally, an English, Welsh or Northern Irish Solicitor couldn’t appear in the Sheriff Court or Justice of the Peace Court in Scotland to represent someone being prosecuted for a road traffic offence.  There is a lack of ‘rights of audience’.

Where a lawyer in one jurisdiction represents a client from another in a tribunal with a UK-wide jurisdiction, it can be problematic when matters come before the courts on appeal.  An example of this can be seen in a tax case from 2015.  The case in question is Taylor Clark Leisure Ltd v The Commissioners for Her Majesty’s Revenue and Customs.  In this case the Appellant, Taylor Clark Leisure Ltd (a company registered in Scotland), had instructed Philippa Whipple QC to represent them in the UK Tax Tribunals in connection with a VAT appeal (along with Philip Simpson QC, a member of the Scottish Bar); they were now looking to appeal to the Court of Session in Scotland.  Ms Whipple is a Barrister in England and Wales and thus had the right to appear for the Scottish Company in the UK Tax tribunals.  The Court of Session held, unanimously, that she had no right to appear in the Court of Session.

The 2015 case above highlights the position that the three legal jurisdictions in the UK are, for all intents and purposes, foreign countries.  Even where a matter is of UK-wide application, the different jurisdictions can have a significant impact upon the course of litigation.  It is not possible for an English lawyer who has not either been admitted to the public office of Advocate, nor as a Solicitor in Scotland (and then been granted extended rights of audience) to appear in the Court of Session.  That would hold true of other courts in Scotland as well.

It is probably fair to compare the situation to that of EU law, where you have 28 different member states (and many more jurisdictions – the UK is not the only member state with more than one jurisdiction) with different legal systems that share some of the same laws.  Although, that comparison isn’t exactly in point because of the Establishment Directive (which doesn’t apply to inter-member state jurisdictions); but that’s not for here!

What of the UK Supreme Court?  Doesn’t it have UK-wide jurisdiction?  Yes, it does.  However, it is not straight forward, certainly insofar as Scotland is concerned (as a Scottish lawyer I couldn’t possibly begin to speak about the situation in England and Wales or Northern Ireland).  Before we go any further, it might be useful if I explain (briefly) the concept of precedent.  Precedent, in law, means that where a court that is higher than the court considering a matter has made a decision on the same point of law, the decision of the higher court is binding upon the lower court (unless it is possible for the lower court to distinguish the case before it from the one in the higher court).

Applying this rule strictly, the UK Supreme Court is higher than the Court of Session and therefore, logically, all decisions of the UK Supreme Court on the same point of law are binding on the Court of Session.  That’s not quite how it works; only decisions of the UK Supreme Court that arise out of a Scottish case are binding on the Court of Session (or any other court in Scotland); decisions from the UK Supreme Court arising out of cases from England and Wales or Northern Ireland are persuasive (in the same way that a decision of the Supreme Court of Canada may be considered persuasive authority in a Scottish court).  For practical reasons, the Scottish courts will generally follow a decision from the UK Supreme Court on a point of law that arises from a UK-wide law which has come from a case from England and Wales or Northern Ireland.  After all, if the UK Supreme Court has decided the law on a particular point in one way in one case, it is unlikely that it will decide it a different way in another case (although it is possible).  That pragmatic view does not alter the fact that a UK Supreme Court authority from an English (including Welsh) or Northern Irish case is merely persuasive in a Scottish court.

Then, there are criminal law matters.  The highest appellate court for criminal matters in Scotland is the High Court of Justiciary when sitting as an appellate court.  There is no right of appeal to the UK Supreme Court.  The UK Supreme Court has gained jurisdiction in respect of Scottish criminal appeals in very limited circumstances as a result of devolution.  An accused person who complains that their human rights have been infringed can appeal to the UK Supreme Court, but only on that ground.  The UK Supreme Court does not, however, have the power to quash a conviction or to alter a sentence in a Scottish criminal appeal; it must remit the case back to the High Court of Justiciary to apply its decision to that case.  Nor does it have the right to interpret criminal offences enacted by the Scottish Parliament, nor consider common law offences in Scotland; except upon the limited grounds that there has been an infringement of EU law or the European Convention on Human Rights.

In short, it is, in my submission, incorrect to say that there is one law applicable across the whole of the UK called British law.  There are three separate laws across the UK (and a fourth developing as a result of devolution to Wales) and the laws in many key areas are very different (an English criminal lawyer would probably look at you funny if you mentioned hamesuken to them).  It is more accurate to say that there are three legal systems which share some of the same laws.

Data Protection, English Law, Information Law, Information Rights, Scots Law

Litigation, Privilege and Subject Access



The Extent of the Legal Professional Privilege Exemption



Disproportionate Effort


Court’s discretion















What does this case mean?






Brexit and Parliamentary time: the Scottish Tories’ complaint



