Thursday, 13 December 2012

Many dimensions to the law ~ Supreme Court judgments of 12th December

The Supreme Court handed down three judgments on 12th December.

X (Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondents)  

Judgment PDF

Press summary (PDF)

In the matter of A (A Child)

Judgment PDF

Press summary (PDF)

Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland)

Judgment PDF

Press summary (PDF)
The cases were concerned, respectively, with the position of a volunteer adviser in a Citizen's Advice Bureau (CAB); whether social work records should be disclosed to the parties in proceedings concerning a child (A); and whether the Scottish Parliament was legally competent to legislate to prohibit the display of tobacco products.  The cases illustrate some of the numerous dimensions of modern day law.

The CAB case:

The CAB volunteer was not an employee and was not in a contractual relationship with the CAB.  There was a "volunteer agreement" - signed by both parties - setting out the nature of the role and what was expected of them.  X was asked to stop working as a volunteer in circumstances which, X claimed, amounted to disability discrimination but did the protection of discrimination law extend to a volunteer?  The Supreme Court held that it did not.  Volunteers were not within the protection offered by the either the Disability Discrimination Act 1995 or Directive 2000/78/EC (“the Framework Directive”). The court also held that the matter was not open to reasonable doubt and that a reference to the Court of Justice of the EU was not required.

A (A child):

The court felt that it was being asked to try to reconcile the irreconcilable!  An individual (referred to as X - but not the same X as in the previous case) had made allegations relating to sexual abuse against the child's (A's) father.  X claimed that disclosure of social service records would violate her rights under Articles 3 and 8 of the European Convention on Human Rights.  However, the child A also had rights under Article 3 and 8.  Furthermore, all of the parties were entitled to a fair trial in the proceedings - Article 6.  The Supreme Court held that the records were to be disclosed - the principal concern in family proceedings was to get at the truth.

The Tobacco case:

Imperial Tobacco's case against the Scottish legislation was based on the fact that, under the Scotland Act 1998, the Scottish Parliament has to operate only within its legislative competence.  It is not (yet) - unlike the Westminster Parliament - a sovereign legislature.  The Supreme Court held that the legislation in question was within the powers of the Scottish Parliament.


These are three interesting cases and this is particularly so since, in the same day, the Supreme Court's judgments touched upon a number of dimensions (or "pervasive themes") to the law which have come about in relatively recent years.  These dimensions are:

European Union (EU) law - the force of which is recognised in the UK by virtue of the European Communities Act 1972.  The primary sources of EU law are the Treaties entered into by the member states of the EU.  It is the Treaties which, in turn, give force to the multitude of Regulations, Directives and Decisions emanating from the EU. 

Discrimination law - developed by Parliament but also heavily influenced by the EU

The European Convention on Human Rights - has bound the UK in international law since 1953.  It could be referred to in court before the Human Rights Act 1998 but had "persuasive authority" only.  Under the HRA 1998 courts and public authorities in the UK have an obligation, placed on them by Parliament, to apply convention rights.

Devolution legislation - to Scotland, Wales and Northern Ireland.

These dimensions have become vastly important though the foundation stones of our legal system - (built gradually over many centuries via common law and equity) - remain.

Sovereignty and the future:

Through all these dimensions runs the sovereignty of Parliament.  EU law has force in the UK because Parliament permitted the "incoming tide to flow into our estuaries and up the rivers ..." - (Lord Denning MR - HP Bulmer Ltd v J. Bollinger SA [1974] Ch 401 at 418).  The European Convention on Human Rights binds the UK because the UK government agreed to it and the courts apply it because Parliament told them that they must.  The devolved legislatures have only the powers granted to them by the UK Parliament.

Vital decisions, arising mainly from political tensions, face the UK.  The EU is disliked in many quarters and the considerable advantages of membership are rarely mentioned.  There are continual demands for either the UK's relationship with the EU to be revised or for complete withdrawal.

Some of the decisions of the European Court of Human Rights are highly unpopular with Ministers and the Commission on a British Bill of Rights is due to report.  How this will redefine the UK's relationship with the Convention system remains to be seen.  Devolution is a process which, once started, appears to lead onward to further devolvement of power or even to separation.  In 2014 a referendum on Scottish independence will be held.  At this time, the outcome cannot be confidently predicted.

Altogether, 12th December 2012 was an interesting time in the Supreme Court which prompted thoughts on where we are and where we might be heading.

Image (top left) - Multi-dimensional space - Hilbert curves


  1. The A case is one of those which left me thinking “I should bloody well hope so too”.

    The child and the father were threatened with loss of their contact. The latter and the former’s guardian were entitled to know every scrap of evidence which would be placed before the judge – especially where it alleged serious criminality by the father.

    I am indeed surprised that the father did not appeal the finding that X and the mother were not in collusion. That, it seems to me, is a conclusion that the judge could not safely reach until after the mother had given evidence and called X and both had been available for cross-examination on behalf of the father.

    I share the father’s concern that any less rigorous approach would open the door to mothers who wanted to end contact and were not too scrupulous about how to do it. Put somebody up to make these allegations and refuse to testify! Hey presto and goodbye Daddy from the child’s life.

  2. Note that the court said that it did not follow that X would be called as a witness. There was medical evidence to the effect that disclosure of the records would be detrimental to X's health. If a hearing was required, up to date medical evidence would be obtained for X and measures to protect her from courtroom confrontations could be considered.

    Practitioners in family law would do well to note what the court said at para 38 of the full judgment.

    1. Ed (not Bystander)15 December 2012 at 06:33

      You emphasise the importance of noting para 38... but don't quote it? Please do so.

    2. Para 38 of the A(a child) judgment states:

      38. I cannot leave this troubling case without voicing my disquiet at the length of time it took for the first instance decision on disclosure to be made. The mother’s application to vary the contact order was made in May 2010. The District Judge made a disclosure order in July 2010 and the local authority challenged that order that same month. The father’s contact was reduced in September, as a temporary measure. But it was not until May 2011 that the case was transferred to the High Court and not until September 2011 that it came before Peter Jackson J for a public interest immunity hearing at which X was represented. Obtaining the medical report took another three months. Nor has the appellate process been as speedy as it might have been. But in retrospect it should have been obvious at the outset that the stance taken by the local authority raised difficult questions of law and fact which required speedy resolution, principally in the interests of A but also in the interests of her parents and of X. The contact arrangements ordered in February 2009 have been interrupted and it is still not possible to say when the matter will be resolved. The parties deserve better of the family justice system than this.

    3. Ed (not Bystander)15 December 2012 at 18:31

      Well said by the judge, and well highlighted. Thanks.

  3. What weight could her allegations carry if she would not give evidence and submit to cross-examination, if necessary by video-link?

    1. The allegations in themselves would carry lesser weight than they might if they were tested by cross-examination. However, the court has to decide on the totality of the evidence. If the court considers that a fair decision can be reached without calling X then she would not be called. If the court feels that it is necessary to call X then I would think that arrangements would be made to receive her evidence in a way which would seek to minimise the stress it might impose on her.

      Please see para 36 of the court's full judgment (via link in the post) - which I don't intend to reproduce here !!

  4. The allegation of collusion should not have been dismissed without M being cross-examined on it.

    As for X, the stress on her must come second to the rights of the parties - above all A and F.

    1. In family proceedings it is the interests of the child which is paramount. The parents and others are part of the picture in deciding what is in the child's best interests. Any possible stress on X is secondary to the best interests of the child A.

  5. It may of course be in M's interest that X's statement is read and in F's that she be required to testify and that if she does not her allegations should be ignored. It will be in A's interest to have the full picture and that includes her reaction to cross-examination.