Compatibility: devolution issues reborn

With effect from 22 April 2013 the system for taking what are currently ECHR and EU devolution issues to court will change. Practitioners are particularly advised to note there will be a 28-day time limit for appeals to the Supreme Court. NB this time limit will apply even to existing devolution cases. Practitioners are advised to check the more detailed guidance below on how the new time limits will apply to existing cases.

On 22 April 2013 the rules for examining the compatibility of any aspect of a criminal trial with the European Convention of Human Rights, or with EU law, change as the relevant provisions of the Scotland Act 2012 will come into force on that day. These provisions bring into effect a new procedure, agreed by the UK and Scottish Governments and the respective Parliaments, specifically for taking these issues to the High Court or the UK Supreme Court.

The UK and Scottish Governments have agreed to move cases to the new system as quickly as possible. This means:

• Any ECHR or EU law issues that arise in new or ongoing criminal cases on or after 22 April must be raised using the new compatibility procedure.
• Subject to some limited exceptions (see below) any ongoing ECHR or EU devolution issues will follow the new procedure from 22 April.
• Devolution issues in cases which are in the course of being heard, whether at appeal or trial, or which are at avizandum on 22 April will convert immediately following the judgment.
• Devolution issues which are being heard by the Supreme Court on 22 April will continue as devolution issues.
• Devolution issues which have already been determined will remain so unless there are further proceedings on compatibility grounds after 22 April, in which case those further proceedings will follow the new procedure.

The devolution issue procedure with which practitioners have been familiar up to now will still be used in criminal cases but only where the issue concerns a question as to whether relevant legislation passed by the Scottish Parliament or acts of Scottish Ministers are outside competence e.g. if they relate to reserved matters. The devolution issue procedure will not apply to criminal cases involving either ECHR or EU law issues.

Practitioners should also note the important practical difference that a time limit of 28 days has been set for applying for the permission of the High Court to appeal a compatibility issue and a devolution issue in criminal cases to the UK Supreme Court from the date of determination. A time limit of 28 days has also been set for applying for the Supreme Court’s permission to appeal a compatibility issue and a devolution issue in criminal cases where this has been refused by the High Court. Both limits may be extended by the respective courts, where this is equitable given all the circumstances.

Transitional arrangements apply for existing devolution cases in criminal cases where there is a right of appeal. The time limit of 28 days will apply from 22 April, as opposed to the date on which the devolution issue was determined or when permission to appeal was refused.

Practitioners are encouraged to familiarise themselves with the new procedure and to apply it from 22 April 2013 to any cases in which they may be acting where relevant issues arise. Practitioners are also strongly encouraged to review existing cases where the new procedure or new time limits may apply.

Compatibility issue Q & A

Q What issues are governed by the new system?

A Where issues are being raised regarding the compatibility of any criminal proceedings with the European Convention on Human Rights, or with Community law, they will be compatibility issues and follow the new compatibility issue procedure. Where the issue is a challenge to Scottish legislation or Scottish ministers on other grounds of competence, e.g. outwith reserved powers, then the issue will continue to follow the devolution procedure.

Q When does the system change?

A 22 April 2013.

Q But what happens to a case which is ongoing at that time?

A Devolution issues relating to ECHR or EU matters in criminal cases which are being heard, or where a trial is ongoing, or an appeal is still being argued, or which are at avizandum at that date, will convert immediately following the judgment. Any such devolution issues which are being heard by the Supreme Court on 22 April will be dealt with as devolution issues. Devolution issues which have already been determined as at 22 April 2013 will remain devolution issues, unless there are further proceedings on compatibility grounds after 22 April, in which case those further proceedings will follow the new procedure.

Q Will I still have to raise criminal issues as acts of the Lord Advocate?

A No. The new procedure applies the compatibility jurisdiction to questions as to whether a public authority (including Scottish Ministers) has acted unlawfully, under the Human Rights Act, acted in a way which is incompatible with EU law, or whether an Act of the Scottish Parliament is incompatible with ECHR or EU law.

Q Will I have to reformulate my submissions in an ongoing case at 22 April?

A No. The court will use existing materials. Under the new Act of Adjournal the court may also make any orders it thinks just and equitable to enable it to determine the devolution issue as a compatibility issue. In any proceedings in the same case after 22 April, however, you will have to use the compatibility procedure where this is appropriate.

Q What are the important issues for me to consider?

A It will be important to remember the time limits. If you wish to appeal a compatibility issue (including one that was a devolution issue and converted to become a compatibility issue) or a devolution issue in criminal proceedings to the UK Supreme Court, you must make an application for the permission of the High Court to appeal to the UK Supreme Court within 28 days of the determination against which you seek to appeal. If the High Court refuses, you have 28 days from that refusal to apply to the UK Supreme Court for permission to appeal.

Any issues regarding the compatibility of any criminal proceedings with the European Convention on Human Rights, or with Community law, which you raise after 22 April 2013, must be formulated as a compatibility issue and lodged using the appropriate form within the appropriate time limits, in accordance with the Act of Adjournal.

In addition, you should note that the UK Supreme Court will not be deciding the disposal of cases. It will determine the compatibility issue or issues and leave any appropriate action for the High Court to consider.

You should also note that the new time limits apply to both compatibility issues and those cases that will remain to as devolution issues in criminal proceedings.

Transitional arrangements are made for existing cases to avoid the 28 day period expiring shortly after 22 April. For those existing cases (whether convertible devolution issues or devolution issues) where there is a current right to appeal, the 28 days time limit will start from 22 April rather than the date of determination or the date when permission to appeal was refused.

Q Can you give examples of how this will work?

A On 1 March 2013 the High Court, acting as an appeal court, determined a devolution issue concerning a question as to whether a provision of an ASP relates to a reserved matter. If no application to seek permission to appeal to the Supreme Court against the devolution issue has been made before 22 April 2013, then any application must be made to the High Court on or before 20 May 2013.

On 1 March 2013 the High Court, acting as an appeal court, determined a devolution issue concerning a question as to whether a provision of an ASP is incompatible with the ECHR. If no application to seek permission to appeal to the Supreme Court against the devolution issue has been made before 22 April, then from that date, as the devolution issue has converted to a compatibility issue, any application would need to be an application for permission to appeal against the determination of a compatibility issue and must be made to the High Court on or before 20 May 2013.

Q Can the time limits be extended?

A Yes, if either the High Court or the UK Supreme Court considers this to be equitable in all the circumstances.

Q Will the change to the new system have any effect on the conditions of bail for people who are on bail while these issues are considered?

A No.

Q Will the Advocate General and the Lord Advocate have the power to refer cases?

A Yes, where they are a party.

Q Do I have to intimate compatibility minutes on the Advocate General?

A No. Unlike devolution issues, the Advocate General does not require to receive intimation of any compatibility issue which arises in criminal proceedings. The Advocate General may choose to become a party to cases raising compatibility issues, in which case he will receive intimation in the same way as any other party. The Advocate General will find out about compatibility issues in various ways including information from the courts or the Scottish Government.

Q Will the “devolution issue” procedure continue to exist?

A Yes, for civil cases and for criminal cases which raise issues relating to whether legislation passed by the Scottish Parliament or acts of Scottish Ministers are outside competence other than compatibility with ECHR rights or EU law, e.g. reserved matters. You should note that issues in criminal trials which relate to ECHR rights or EU law, however formulated, will in most cases be compatibility issues from 22 April.

Q Must the High Court certify a case as concerning a point of law of general public importance before I can raise it at the UK Supreme Court?

A No. This point is being considered in a review of the compatibility issue procedure which the UK Government must carry out after 22 April 2016.