McCall v. The Scottish Ministers [2005] ScotCS CSOH_163 (29 November 2005)

McCall v. The Scottish Ministers [2005] ScotCS CSOH_163 (29 November 2005)

The retrospective application of the new Schedule to work performed before its commencement interfered with the petitioner's possessions (fees earned) and did not strike a fair balance between her rights and the public interest. The justification offered—administrative convenience—was insufficient. The approval of the new Regulations was ultra vires the respondents insofar as they applied to work done prior to the commencement date, as this infringed the petitioner's rights under Article 1 of the First Protocol to the ECHR.

Citation
[2005] ScotCS CSOH_163
Parties
Petitioner: Shelagh McCall; Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
29 November 2005
Procedural Posture
Judicial Review / Opinion of Outer House, Court of Session
Outcome
Petition sustained in part; approval of the new Regulations declared ultra vires as regards retrospective application; case put out By-Order for further procedure.
Legal Topics
Retrospective Legislation, Legal Aid Fees, Property Rights Under ECHR, Statutory Interpretation, Ultra Vires, Proportionality
Public Law Human Rights Law Administrative Law Retrospective Legislation Legal Aid Fees Property Rights Under ECHR Statutory Interpretation Ultra Vires +1 more

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Parties

Shelagh McCall

Petitioner

The Scottish Ministers

Respondents

Procedural Posture

Judicial Review / Opinion of Outer House, Court of Session

Legal Issues

  1. 1 Whether the retrospective application of the Criminal Legal Aid (Scotland)(Fees) Amendment Regulations 2005 to work done before their commencement infringes the petitioner's rights under Article 1 of the First Protocol to the European Convention on Human Rights (ECHR)
  2. 2 Whether such application is ultra vires the Scottish Ministers under section 57(2) of the Scotland Act 1998

Ratio Decidendi

The retrospective application of the new Schedule to work performed before its commencement interfered with the petitioner's possessions (fees earned) and did not strike a fair balance between her rights and the public interest. The justification offered—administrative convenience—was insufficient. The approval of the new Regulations was ultra vires the respondents insofar as they applied to work done prior to the commencement date, as this infringed the petitioner's rights under Article 1 of the First Protocol to the ECHR.

Court Disposition

Petition sustained in part; approval of the new Regulations declared ultra vires as regards retrospective application; case put out By-Order for further procedure.

Orders

  • Declarator that the retrospective application of the new Schedule is ultra vires the respondents under section 57(2) of the Scotland Act 1998 and incompatible with Article 1 of the First Protocol to the ECHR.
  • Reduction of the Regulations to the extent of their retrospective application to work done before commencement date.