Seán Crossan's Scots Law

If only everything in life was as reliable as a VW …

In the 1980s, Volkswagen UK ran a very successful marketing campaign using the slogan “If only everything in life was as reliable as a Volkswagen.”

A link to one of the VW adverts regularly shown on UK television can be seen below:

https://youtu.be/LW5ey3_bvVo

Fast forward more than 30 years later and, globally, VW is still dealing with the fallout from a major scandal which was exposed in September 2015. The American Federal Government Agency, the Environmental Protection Agency (EPA) discovered that VW had installed software in many of its models which had the purpose of giving much lower emissions readings. This was an attempt by VW to beat strict environmental pollution controls by giving the impression that its cars and vehicles were “greener”. Consumers are much more aware of their carbon footprint nowadays (think of concerns, for example, about single use plastic) and car manufacturers are not immune to these types of demand for environmentally, sustainable products and services.

Essentially, it is alleged that VW deliberately misrepresented data about the environmental impact of its vehicles (principally in relation to its diesel models) in a cynical attempt to increase sales. Environmentally minded consumers may well have been heavily influenced by the favourable presentation of emissions data when considering whether to purchase a new diesel vehicle.

In Chapter 2 of Introductory Scots Law, I discuss the issue of misrepresentation as a factor which can invalidate a contractual agreement. In particular, I relate the VW scandal to this area of contract law.

If one party (e.g. a seller of goods) makes exaggerated or false claims (the misrepresentation) about a product in order to encourage or induce a buyer to enter the contract, the buyer may be decide to treat the agreement as voidable. This will mean that the buyer may have the right to the following remedies:

Rescission (or cancellation) of the contract; and/or
An award of damages

Critically, the innocent parties must be able to demonstrate to the courts that the misrepresentation actively encouraged them to enter contracts. It is not enough to say that a false statement has been made therefore the contract should be cancelled. The false statement must have influenced the decision of the innocent parties to enter into a legally enforceable agreement.

In Scotland, three types of misrepresentation have been recognised by the courts since the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] AC 365:

Innocent (no intention to deceive/an honest mistake)
Negligent (a statement carelessly made)
Fraudulent (a deliberate intention to deceive)

In the United States of America, the latest twist to the scandal has emerged with the Securities and Exchange Commission taking VW to court in relation to allegations that the company defrauded investors. This is a bitter blow for VW which has already settled many of the claims brought by US consumers.

Across the UK, however, British customers of VW are also being encouraged to sign up for a class action against the company by some leading UK law firms.

It would seem that the advertising slogan from the 1980s is now a very hollow one in 2019.

As the VW scandal demonstrates, a misrepresentation (whatever its nature) can be very costly.

A link to an article about the US legal action against VW can be found below:

US sues VW for “diesel scandal fraud”
https://edition.independent.co.uk/editions/uk.co.independent.issue.160319/data/8825131/index.html

Related blog article:

Dieselgate (or truth through engineering or vorsprung durch tecknik)

https://seancrossansscotslaw.com/2019/12/02/dieselgate-or-truth-through-engineering-or-vorsprung-durch-teknik/

Copyright Seán J Crossan, 16 March 2019

Double jeopardy

Photo – Author’s own

Angus Robertson Sinclair: a life of crime

On Monday 11 March 2019, it was announced that Angus Sinclair, one of Scotland’s most notorious serial killers, had died in HM Prison Glenochil.

In 1961, Sinclair had been convicted of the culpable homicide of 8 year old, Catherine Reehill in Glasgow. He was then 16 years old and served 6 years in prison for the killing. In 1982, Sinclair was convicted of 11 out of 13 charges (3 rape, 7 indecent assault and 1 breach of the peace charges) for which he received a life sentence.

In 2001, while still serving the sentence imposed in 1982, Sinclair was convicted of the homicide of 17 year old Mary Gallacher. This murder had been committed in 1978. He was also suspected of murdering 4 other women between 1977 and 1978.

Double jeopardy

Sinclair’s crimes were particularly gruesome, but he may well be remembered for something else. Two of his crimes led to an historic change in Scottish criminal procedure: the abolition of the centuries’ old double jeopardy rule.

Double jeopardy was an enduring principle of Scots criminal law which meant that an accused person could not face a fresh trial for an offence which s/he had undergone a prosecution and been acquitted. Such persons were described as ‘having tholed their assize’ and, even if new evidence (which assisted the prosecutor) was to emerge after an acquittal or if the charges had been withdrawn during the trial, there could be no new prosecution.

The Scottish Government introduced a Bill to the Scottish Parliament to overturn this practice. The law eventually came into force as the Double Jeopardy (Scotland) Act 2011.

The World’s End Murders

Angus Sinclair was the first person in Scotland to undergo a retrial under the Act for two homicides that he had committed in 1977. These homicides were christened (rather luridly) as the World’s End murders. The World’s End was an Edinburgh public house where the two victims (Christine Eadie and Helen Scott, both aged 17) were last seen alive. Sinclair was prosecuted in 2007 for the murder of the two girls, but the prosecution case collapsed (see HMA v Angus Robertson Sinclair [2007]). His brother-in-law, Gordon Hamilton was also suspected of being Sinclair’s accomplice in the killings, but he had died (in 1996) before he could be prosecuted.

Following the discovery of new DNA evidence, Sinclair was retried and successfully prosecuted for a second time by the Crown Office for the World’s End murders in November 2014 (see HMA v Angus Robertson Sinclair [2014] HJAC 131).

Lord Matthews, the presiding judge in the High Court of Justiciary sentenced Sinclair to minimum term of 37 years in prison. This, of course, was the minimum sentence that Sinclair would have had to serve before he was eligible to apply for parole. In any event, Sinclair managed to serve just over 4 years before his death at the start of this week.

England

In England, of course, the double jeopardy rule was consigned to history somewhat earlier in the wake of the outcry surrounding the murder of the black teenager, Stephen Lawrence (in 1993). The second Labour Government of Prime Minister Blair (2001-2005) ensured the passage of the Criminal Justice Act 2003 through the Westminster Parliament to ensure this objective. Until then double jeopardy, as a legal principle, had existed in England for nearly 800 years.

Copyright – Seán J Crossan, 15 March 2019

Too good to be true

Photo by Justin Lim on Unsplash

In Chapter 4 of Introductory Scots Law, I discuss the importance of the Consumer Protection from Unfair Trading Regulations 2008.

An interesting story about the Regulations was reported by the BBC last week.

The parent company of SCS, the well known furniture retailer, was successfully prosecuted under the Regulations at Aberdeen Sheriff Court.

The offence?

SCS had displayed posters claiming that all products had been reduced as part of its Black Friday sales event in November 2017. This was not true: the price of three sofas had been substantially increased by the company several days before the promotional event (one product had been increased by as much as £800). The Trading Standards Department at Aberdeen City Council had been investigating the company’s pricing policies over a long period and this is how the prosecution was initiated by alerting the Procurator Fiscal Service to the situation.

Sheriff Ian Wallace was firmly of the view that the company’s use of deliberately misleading advertorial material (the posters) for financial advantage was a breach of the Regulations. The parent company of SCS was fined £6,000 by the Sheriff.

A link to the story on the BBC website can be found below:

Sofa firm fined for hiking prices before Black Friday

The Regulations

The Regulations came into force on 26 May 2008 and were implemented into UK law as a result of the European Union’s Unfair Commercial Practices Directive (2005/29/EC). The Directive is further evidence of the European Union’s desire to standardise or harmonise consumer law across the member states and to ensure that consumers in the Single European Market and the European Economic Area benefit from tougher legislation which aims to tackle disreputable trading and retailing practices by businesses.

Brexit alert!!!: the Directive has been implemented into UK law via the Regulations and will continue to be part of domestic law until such time as any future Westminster Parliament decides to repeal these important consumer laws.

The most important feature of the Regulations is that they impose a general duty on retailers and traders to act fairly and honestly in their dealings with consumers. More specifically, the Regulations target particular trading practices which are deemed to be aggressive or misleading where consumers are concerned and certain practices will be banned altogether.

As the title of the Regulations suggests it will be consumers i.e. individuals who purchase products for their own private use who will benefit the most from the protection offered by the new legislation. For the most part, business or non-consumer contracts will not be affected, but there may be situations where such contracts can have an impact on consumers and, therefore, the Regulations might apply.

The general prohibition (Regulation 3)

Regulation 3 prohibits, in a general sense, unfair commercial practices. A commercial practice will be regarded as unfair if the retailer or trader has behaved in a way which is not professionally diligent and if it materially distorts or is likely to materially distort the behaviour of the average consumer. The essential thing to focus on here is that the behaviour of the retailer or trader (whether by act or omission) has caused the consumer to make a decision which has left him/her materially disadvantaged. In other words, the consumer has made a decision which s/he would probably not have made if the retailer or trader had acted with honesty and integrity.

Regulation 2 also explains what is meant by the term material distortion. A material distortion might occur in situations where a trader behaves in such a way towards a consumer which could cause the consumer to make a decision which would significantly alter his or her behaviour and thus prevent him or her from being able to make an informed decision about the product.

Misleading commercial practices (Regulations 5-7)

Regulations 5–7 ban commercial practices by a trader which are deemed to be misleading (whether such practices involve an act or omission) or aggressive and again where the average consumer is influenced to such an extent whereby they make a different decision which, in the short or long term, could be harmful or detrimental to his or her interests. It will be necessary for the courts to consider evidence as to what is an aggressive or misleading commercial practice by a trader or retailer and the likely effect of such conduct on consumers. If a consumer can demonstrate that a trader behaved in a dishonest or unreasonable way and this led him or her to suffer real harm as a result there will surely be a strong case to answer.

Copyright Seán J Crossan, 14 March 2019

Watchdogs

In an earlier post published today (No more heartbreak hotel?), I discussed the work of regulatory bodies such as the Competition and Markets Authority.

Another body which does a lot of sterling work on behalf of the public is the Equality and Human Rights Commission. It is the body charged with the responsibility of enforcing the equality laws of the United Kingdom.

Recently, the Equality and Human Rights Commission has taken an interest in highlighting (and challenging) allegations of unlawful, less favourable treatment.

The Commission has made known its intention to investigate the British Broadcasting Corporation (in respect of sex discrimination involving pay) and the British Labour Party (for alleged anti-semitism).

Links to these stories can be found below:

‘Watchdog investigates BBC over ‘pay discrimination’’

https://edition.independent.co.uk/editions/uk.co.independent.issue.130319/data/8819431/index.html

Labour antisemitism: equalities watchdog opens investigation

https://www.theguardian.com/politics/2019/mar/07/labour-antisemitism-equalities-watchdog-opens-investigation

Copyright – Seán J Crossan, 14 March 2019

No more heartbreak hotel?

In Chapter 1 of Introductory Scots Law, I discussed alternative methods of resolving issues or disputes which may have legal consequences.

In particular, I focused on the role of regulatory bodies which can assist members of the public e.g. consumers to lodge complaints and have these disputes resolved relatively inexpensively.

One of these regulatory bodies with an important role to play in consumer law is the Competition and Markets Authority (CMA) . This organisation aims to ensure that there is a level playing field for consumers and that businesses do not exploit an often dominant position in the market place.

A recent story which threw some light on the work of the CMA concerned misleading pricing and marketing policies which were being used by some hotel booking websites. In particular, the CMA found that some booking companies were using high pressure tactics to get consumers to finalise a booking. A favourite tactic being used by the booking sites was to give consumers the impression that demand for rooms at certain hotels was far greater than was actually the case.

Consumers do have recourse to the law – the Consumer Protection from Unfair Trading Practices Regulations 2008 is one such example (see Chapter 4 of Introductory Scots Law). That said, taking individual legal action can be fraught with risk for consumers. It is often better if a regulator, such as the CMA, is willing to go to the barricades on behalf of consumers generally in an attempt to get businesses to play fair – either by means of (gentle) persuasion or by threats of legal action.

As a result of the intervention by the CMA, hotel booking sites will now have to behave more transparently in their interactions with actual and potential customers.

A link to a CMA press release concerning hotel booking websites can be found below:

https://www.gov.uk/government/news/hotel-booking-sites-to-make-major-changes-after-cma-probe

A link to a BBC report about the CMA investigation can be found below:

I saw this on the BBC News App and thought you should see it:

Hotel booking sites to end ‘misleading’ sales

Hotels agree to be clearer about discount claims and stop high-pressure selling tactics.

Copyright – Seán J Crossan, 14 March 2019

Crime and … kindness?

An interesting article from BBC Scotland today concerning the visit to this country of two American judges. Nothing unusual or out of the ordinary about this you might retort. Cultural and professional exchanges can be numbered in the thousands every single year.

What’s really interesting about this visit is that the judges – Victoria Pratt and Ginger Lerner-Wren have been invited to Scotland by Community Justice Scotland, a publicly funded body, where they are hoping to meet hundreds of people who deal with the Scottish criminal justice system.

The two judges are keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They point to impressive results in the United States – a New York court alone has seen a dramatic decrease of 20% in youth crime and a 10% reduction in crime overall by using radical methods to deal with offenders. One of the judges, Ginger Lerner-Wren established one of the first mental health courts anywhere in the world. The aim of this court (based in Florida) was to promote treatment of offenders as an alternative to traditional forms of punishment. Judge Pratt, on the other hand, specialises in “procedural justice”.

What is procedural justice?

According to the BBC article it means “that if people before the courts perceive they are being treated fairly and with dignity and respect, they’ll come to respect the courts, complete their sentences and be more likely to obey the law.”

Readers of this blog will be aware that in an earlier entry (The Demon Drink), I drew attention to Glasgow Sheriff Court’s Alcohol Court where a difference in approach to crimes involving alcohol and domestic violence is being pioneered. It is in this kind of tradition that the American judges are working.

A link to the article on the BBC website can be found below:

The ‘kindness’ judges turning courts inside out

Two top judges are in Scotland to share expertise on “procedural justice” which encourages respect in court.

A link to the website of Community Justice Scotland can be found below:

https://communityjustice.scot/

Copyright – Seán J Crossan, 12 March 2019

Braveheart?

Photo by Petia Koleva on Unsplash

In a previous post published on 22 January 2019 (Philosophical beliefs (or you’d better believe it!), I drew attention to the ongoing of Employment Tribunal case of Christopher McEleny against the Ministry of Defence.

Mr McEleny is an SNP councillor for Inverclyde and some time ago he ran for the Party’s Deputy Leadership post. In his day job, Mr McEleny was employed as an electrician by the UK Ministry of Defence at one of its sites in Beith, Ayrshire.

When his employer found out that Mr McEleny was running for the Deputy Leadership post, he claims that was pulled in to a meeting and grilled about his views on Trident amongst other things. He also had his security clearance revoked and was suspended. Although he was reinstated, Mr McEleny later decided to leave his job with the MOD.

Mr McEleny brought a claim under Section 10 of the Equality Act 2010 alleging that he had suffered direct discrimination on the grounds of his philosophical beliefs i.e. his belief in Scottish independence as a concept which forms and influences many of his decisions in life.

At a Preliminary Hearing in July 2018, the Employment Tribunal Judge ruled that belief in Scottish independence could constitute a philosophical belief which was capable of being protected under the Equality Act 2010. It should be noted that Mr McEleny was able to demonstrate that many of the decisions that he makes and the ways in which he chooses to live his life are firmly based on his belief in Scottish independence. It is important to appreciate that him merely being a member of the SNP was not enough: you have demonstrate that you live by your beliefs.

The Ministry of Defence disagreed with this finding and appealed. Employment Tribunal Frances Eccles has now considered the appeal and has decided that a belief in Scottish independence can constitute a protected characteristic for the purposes of the Equality Act 2010.

Mr McEleny’s claim must still proceed to a full Employment Tribunal Hearing in which he will have to demonstrate that he was subjected to unlawful discrimination by reason of his philosophical beliefs.

A link to an article about the latest turn in Mr McEleny’s case can be found below:

https://www.holyrood.com/articles/news/judge-upholds-ruling-belief-independence-protected-under-equality-law-religion

Copyright – Seán J Crossan, 12 March 2019

Born leaders?

Photo by Brooke Lark on Unsplash

International Women’s Day

As today is International Women’s Day (Friday 8 March 2019), I thought I would discuss the serious problem of the lack of females in senior management positions in many organisations.

I use the words ‘serious problem’ quite deliberately because the lack of women in senior positions means that many employers are ignoring (either deliberately or unconsciously) a vast reservoir of skill and talent.

Yes, astonishingly, in 2019 it would seem that the ‘glass ceiling’ is still firmly in place. The phrase ‘glass ceiling’ was first used in 1978 by Marilyn Loden, an American management consultant and encapsulated the frustrating (and all too painful) situation that many competent women have experienced in the work-place. They can see all the way to the top of the career ladder, but somewhere on the way up they will hit an invisible barrier or obstacle which will prevent them from progressing further. In an interview with the BBC in 2017, Loden opined that the phrase was still as relevant as it had been in 1978:

100 Women: ‘Why I invented the glass ceiling phrase’

Workplace consultant Marilyn Loden coined the phrase “the glass ceiling” 39 years ago but says it is still as relevant as ever.

The view from the Institute of Directors and Cranfield School of Management

Charlotte Valeur, Chief Executive of the UK Institute of Directors (IoD), has been more direct about this problem. In an interview with The Guardian, to coincide with International Women’s Day, Ms Valeur bluntly accused FTSE companies of “lying” when they claimed that they found it difficult to recruit enough females or ethnic minority candidates to serve on boards of directors:

““Do we really think that’s difficult? It’s a lie. It’s not difficult. … I will be very unpopular with FTSE 100 [companies], but I don’t actually mind, because it’s not true that it’s difficult.”

Interestingly, Ms Valeur goes on to say that she would campaign for new laws to promote diversity unless UK based organisations started to take the problem of the lack of women in boardrooms seriously. In Ms Valeur’s opinion the current equality laws do not seem to be fulfilling their intended objectives.

A link to the article in The Guardian containing the interview with Ms Valeur can be found below:

https://www.theguardian.com/world/2019/mar/08/exclusive-iod-chair-charlotte-valeur-firms-lying-about-appointing-women-improve-diversity

Valeur’s analysis appears to be borne out by recent research carried out by Cranfield School of Business as part of its annual Female FTSE Index for 2018. The Report appears to show that the numbers of women in CEO roles in FTSE 100 companies has “remained static” and, in FTSE 250 companies, the numbers have “declined sharply”:

https://www.cranfield.ac.uk/som/expertise/changing-world-of-work/gender-and-leadership/female-ftse-index

Legislative intervention

Historically, women have faced very real obstacles which have actively undermined their chances of advancement and promotion in the work-place. They have simply not been valued in comparison with their male colleagues. Gender or sex discrimination has also manifested itself in unequal pay, pregnancy and maternity discrimination and harassment.

Despite decades of legislative intervention to combat sex discrimination, we still hear about depressing stories such as the one below:

Maternity discrimination: ‘Having a baby cost me my job’

Sarah Rees, who was made redundant while on maternity leave, is calling for changes.

Somewhat depressingly, the Trades Union Congress (TUC) “published analysis this week that showed there is a 17.9 per cent difference in the amount men and women typically earn”:

https://edition.independent.co.uk/editions/uk.co.independent.issue.090319/data/8814226/index.html

Many women working for City of Glasgow Council will be well aware of this having just settled a massive equal pay claim in January/February 2019.

Admittedly, over the last 40 years or so, the UK Parliament has attempted to address (and redress) the issue of sex discrimination generally by passing domestic legislation (e.g. the Equal Pay Act 1970, the Sex Discrimination Act 1975 and, most recently, the Equality Act 2010); and by implementing EU legislation (e.g. Equal Treatment Directives, Equal Pay Directives and the Part-time Workers’ Directive). And yet, despite all of these measures (and more), the question which still needs to be asked is why sex discrimination in the work-place is still so prevalent?

Positive discrimination?

In a previous post published on 28 February 2019 (The force is not with you …), I discussed the issue of positive discrimination. Could positive discrimination be a way forward to break the male stranglehold on senior management positions? This may seem like a solution but, as we have seen, this is an area not without its share of legal complexity.

Limited positive discrimination seems to be permitted in the UK and the EU when you have a number of diverse candidates (e.g. gender, race etc) who possess similar academic/vocational qualifications and/or experience. It may be permissible to appoint a suitably qualified woman over a similarly qualified male candidate if the employer can show that this is objectively justified i.e. it is a genuine attempt to promote diversity. That said, attempts to introduce positive discrimination have been subject to legal challenge e.g. Jepson and Dyas-Elliott v The Labour Party [1996] IRLR 116 or outright hostility e.g opposition to the 50/50 recruitment policy for the Police Service of Northern Ireland.

Furthermore, there can be enduring cultural stereotypes centring around the positive discrimination, namely, that the preferred candidate got the job merely because they ticked the necessary boxes (e.g. age, gender, race etc) required to fill a quota. Whether this is true or not, it can make beneficiaries of positive discrimination uneasy that they will be judged not on their ability and skill, but on the basis of their attributes or characteristics.

Blind recruitment?

Blind recruitment is becoming popular with many organisations. Following the publication of the Bridge Group Report in 2016, the UK senior civil service and the NHS committed themselves to this form of recruitment.

A link to the Bridge Group Report can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/497341/BG_REPORT_FINAL_PUBLISH_TO_RM__1_.pdf

What does it involve?

Basically, the personal data of candidates such as age, educational establishment, disability, gender and ethnicity/nationality/race are not revealed to the recruiter. The theory is that suitable candidates will be selected on the basis of academic/vocational qualifications, experience and skills alone. Theoretically, this should assist more women (and individuals from minority) groups to break through the ‘glass ceiling’ and secure promotion at more, senior management level.

A link to an article about ‘blind recruitment’ can be found below:

https://www.ciphr.com/features/what-is-blind-recruitment/

The Incompetent Male Leader

Why is it that so many incompetent managers are men asks Tomas Chamorro-Premuzic?

Chamorro-Premuzic is a Professor of Business Psychology at University College London and Columbia University, New York.

Well, a major reason could be the reliance on the traditional interview method for recruitment selection. It would seem that men are better at promoting themselves in this forum than women and men tend to emphasise ‘virtues’ which demonstrate their supposed leadership calibre e.g. assertiveness, decisiveness and toughness. Chamorro-Premuzic argues that many of these qualities are vastly overrated by recruiters. Additionally, he asserts that many male leaders and managers suffer from delusions of grandeur and lack of technical expertise. The solution to the problem of the lack of women in senior positions is greater use of psychometric testing.

A link to an article about Tomas Chamorro-Premuzic’s comments can be found below on the BBC website:

How incompetent men get ahead

Why Do So Many Incompetent Men Become Leaders? Tomas Chamorro-Premuzic’s book has a provocative title but what’s the answer?

Conclusion

The purpose of this article was to highlight the fact that, in 2019, women are still woefully under-represented in senior positions in many UK based organisations. If we look at statistics supplied by Cranfield School of Business, the overall picture is not encouraging. The phrase the ‘glass ceiling’ (first used in 1978) seems to be as relevant as ever.

Suggested solutions include positive discrimination and more psychometric testing. More inventive solutions can seem attractive, but a word of warning: some years ago Amazon attempted to develop a recruitment tool using artificial intelligence (AI). The road to hell, however, is paved with good intentions: to the dismay of Amazon executives, the AI system was found to be discriminating against female candidates! Back to the drawing board it would seem …

A link to the story about Amazon’s well meaning, but ultimately doomed attempt to attract more female candidates into tech jobs can be found below:

https://www.theguardian.com/technology/2018/oct/10/amazon-hiring-ai-gender-bias-recruiting-engine

There ain’t nothin’ goin’ on but the rent …

Photo by rawpixel on Unsplash

There ain’t nothin’ goin’ on but the rent: so sang Gwen Guthrie in her 1986 R&B hit (older readers may well remember this track). Unfortunately, the same cannot be said for the UK Government which has just lost a human rights case before the English High Court (Mr Justice Spencer being the presiding judge). A link to a report on the BBC website can be found below:

this on the BBC News App and thought you should see it:

‘Right to rent’ checks breach human rights – High Court

Making landlords check the immigration status of tenants leads to racial discrimination, judge rules.

Immigration Act 2014

When Prime Minister, Theresa May was in her previous job as Home Secretary she steered legislation (the Immigration Act 2014) through the UK Parliament which obliged landlords to check the immigration status of tenants. The purpose of this part of the legislation was to create “a hostile and intimidating environment” for illegal immigrants. The scheme was known as the right to rent.

Landlords who failed to carry out this exercise or failed to do it properly, could be charged with a criminal offence in England. The right to rent scheme had not yet been introduced to Northern Ireland, Scotland or Wales, but it was the clear intention of the UK Government to do this. It should be recalled that immigration policy remains an area of law reserved to the UK Parliament.

Introduction of the right to rent policy across the remainder of the UK may now be wishful thinking on the part of Mrs May’s Government. In any event, the Scottish Government had already expressed its hostility to the introduction of this policy.

Between R (Joint Council for the Welfare of Immigrants) (Claimant) and Secretary of State for the Home Department (Defendant) and (1) Residential Landlords Association; (2) Equality and Human Rights Commission; and (3) Liberty (intervenors)[2019] EWHC 452

The High Court has determined that the right to rent provisions of the Immigration Act 2016 are a breach of the Human Rights Act 1998 (i.e. are incompatible) because they discriminate against individuals on the basis of their ethnicity, nationality and/or race. In terms of Article 14 of the European Convention on Human Rights, there is a general prohibition on discrimination. There could also be a breach of Article 8 of the European Convention (right to private life and family life). The Government argued that checking the immigration status of prospective tenants was a necessary means of clamping down on illegal migrants – in other words, it could be objectively justified. The High Court did not share this opinion and stated that the compulsory background checks did nothing to combat illegal migration. In point of fact, it encouraged landlords to discriminate against British citizens from ethnic backgrounds (who not surprisingly had foreign names) and non-UK nationals who were in the country quite legally e.g. EU nationals.

The right to rent scheme also breaches Section 149 of the Equality Act 2010 (the public sector equality duty).

Mr Justice Spencer in his ruling stated:

“The measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect…”

A link to the High Court’s decision can be found below:

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2019/452.html&query=(joint)+AND+(council)+AND+(for)+AND+(the)+AND+(welfare)+AND+(of)+AND+(immigrants)

The consequences of the judgement?

The right to rent scheme has not yet been rolled out across the rest of the UK. The High Court’s decision (though applicable to England only) will certainly give the UK Government pause for thought. A declaration of incompatibility by a UK court is a very serious matter. Although it will not nullify the legislation (that is for Parliament to decide), it represents a significant criticism that parts of a UK Act of Parliament are not human rights compliant.

Admittedly, the High Court has stated that the Government has the right to appeal and it will be interesting to see what happens next.

Conclusion

Human rights are an area of the law which could be labelled the gift that keeps on giving to legal students and practitioners. In 2019, there is scarcely an area of UK public policy which will be immune from international human rights principles. The UK Government may choose to appeal, but if in the longer term, the decision of the High Court is upheld by the English Court of Appeal (and possibly by the UK Supreme Court), it will be up to the UK Parliament to decide whether to amend the Immigration Act 2016 so that it is compatible with this country’s human rights obligations.

As stated in previously Blogs, the consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the Supreme Court’s decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

“An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Commit the crime, do the time?

Sentencing of individuals who have been found guilty in the Scottish criminal courts is a crucial part of a judge’s role. Parliament (whether at Westminster or Holyrood) will often determine the length of sentences through the medium of legislation. Sentencing may also be influenced by judicial precedent.

A lot of misconceptions exist regarding sentencing by judges e.g. members of the public might believe that an offender found guilty of culpable homicide (murder) will serve 17 years only. This is a failure to appreciate that the offender in question must serve a minimum term of 17 years before they can apply for parole. The Parole Board may well refuse to release the offender. The main function of the Scottish Sentencing Council is to demystify sentencing decisions and, therefore, educate the public about these matters.

Sentencing is not just about imposing prison terms on the offender. Judges have a variety of options at their disposal:

Admonition
Caution
Community Pay Back Orders
Drug Testing and Treatment Orders
Football Banning Orders
Fines
Reparation
Restriction of Liberty Orders

A particularly useful resource for students and practitioners of Scottish criminal law is the website of the Scottish Sentencing Council:

https://www.scottishsentencingcouncil.org.uk/

This body was established by the Scottish Parliament in October 2015 as a result of provisions contained in the Criminal Justice and Licensing (Scotland) Act 2010. It consists of 12 members – a mixture of judicial, legal and lay individuals.

A list of the current membership can be viewed by accessing the link below:

https://www.scottishsentencingcouncil.org.uk/about-us/who-we-are/membership

According to the Council, its primary duties are as follows:

the preparation of sentencing guidelines to be used by the courts
the publication of guideline judgements which the courts have issued
the distribution of information to the public and practitioners concerning sentences issued by the courts

The Council also carries out research into sentencing.

It is important to note, however, that its remit does not extend to involvement in individual sentencing matters. Crucially, this is a matter for Scottish criminal judges.

The first sentencing guidelines were approved by the High Court of Justiciary on 30 October 2018 and became operational on 26 November 2018.

The link to the principles governing sentencing can be found below:

https://www.scottishsentencingcouncil.org.uk/media/1927/guideline-principles-and-purposes-of-sentencing.pdf

Sentencing Video

One of the really interesting resources on the Council’s website is a video (using a fictional case study) which demonstrates how judges arrive at verdicts in criminal cases. The link to this resource can be found below:

https://www.scottishsentencingcouncil.org.uk/about-sentencing/sentencing-video/

Additional resources on sentencing

The website of the Judicary of Scotland also provides some very useful resources i.e. sentencing statements by judges which set out the rationale for the punishment(s) imposed on the offender by the criminal courts.

A link to a recent sentencing statement by a Lord Commissioner of Justiciary in the High Court at Edinburgh can be found below:

https://judiciary.scot/home/sentences-judgments/sentences-and-opinions/2025/10/31/hma-v-mompati-dodo-isaacs

Conclusion

The aim of the sentencing guidelines is to ensure that judges in the criminal courts are making decisions in a transparent and coherent way which the public can understand. Judges can and do come in for a lot of criticism when it comes to sentencing decisions. Often the public does not understand what lies behind these decisions and, frequently, certain sections of the media are not exactly helpful in this regard.

It should be appreciated that the hands of judges are tied by legislation and judicial precedent which govern sentencing.

The area of criminal law regulating the possession, supply and production of illegal drugs (whether Class A, B, C or temporary Class drugs) is a great example of the boundaries in which judges have to operate when imposing sentences for these types of offences. Although criminal justice is a devolved area, the laws governing illegal use of drugs are UK wide.

A link to the possible sentencing limits for drugs offences can be found below:

https://www.gov.uk/penalties-drug-possession-dealing

It is important to note that that the guidelines do not mean that sentences in similar types of cases will be exactly the same. Judges will take into account different factors when imposing sentences e.g. relevant previous criminal convictions, victim (impact) statements and whether the individual co-operated with the court by pleading guilty at an early stage of the proceedings.

Postscript

In May 2019, six men (involved in a Glasgow gangland feud) were jailed for a collective total of 104 years by Lord Mulholland at the High Court of Justiciary.

A link to an article on the BBC website containing the background to this story and a video of Lord Mulholland passing sentence can be found below:

Six jailed over Glasgow ‘war zone’ gang feud

Police said it was a miracle no-one died in the attacks, which took place in and around Glasgow.