In press reports about Salmond's scheduled appearance before Holyrood next week & written evidence, there's a lot of vague references to "legal considerations" informing what can and cannot lawfully be disclosed. For outsiders looking in, here are the most obvious limitations.
Firstly, Holyrood procedures are insulated from the law of defamation in the way publishing elsewhere or holding a press conference would not be. This is in section 41 of the Scotland Act. Parliamentary privilege in Holyrood is a pretty limited compared to Westminster.
In contrast with Westminster, Holyrood proceedings are covered by any orders made under the Contempt of Court Act 1981. One relevant order applies in this case.
Then there is the 2010 Act, passed when Salmond was First Minister. S.162 of the Act prohibits the publication of information disclosed for the purpose of defending yourself in court for any other purpose. S.163 makes such a disclosure a criminal offence. legislation.gov.uk/asp/2010/13/se…
Lastly in terms of the obvious potential constraints on publication, there are human rights considerations, including particularly in this context the right to privacy under Article 8 of the European Convention.
Without doubt, the disclosure rules which Kenny MacAskill piloted through Holyrood in 2010 are the dimension *least* understood in this context in terms of legal restrictions which apply to this process. legislation.gov.uk/asp/2010/13/se…

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More from @PeatWorrier

6 Feb
Is Bonnington just going to keep churning out articles which get basic facts about the law wrong & suggest he hasn't actually read the legislation he cites? Read s.23 of the Scotland Act. The High Court has no role whatever here. legislation.gov.uk/ukpga/1998/46/…) scottishlegal.com/article/alista…
Under s.23, Holyrood has the power to call witnesses on its own authority. Under s.24, a requirement is imposed when the clerk gives notice to the person or body it is imposed on. Under s.25, failure to comply is an offence. No court (nevermind the High Court) is involved.
Basic, basic stuff - the kind of elementary reading of statute any solid LLB student should manage, nevermind someone who continues to identify themselves as an "honorary former law professor."
Read 4 tweets
10 Apr 20
One of the funniest cases I've ever heard of concerned a man accused of impersonating a police officer. A thread. This chap had been out for a few too many pints & decided to take a cab home. Disaster! Mid-journey, he discovers he doesn't have the cash on him to cover the fare.
So what does he do? Confesses to the driver, who punts him out on the street. Consumed by guilt about the ride he's stolen from the taxi driver, our drunken hero decides to turn himself in to the police. He seeks out the local police station - and finds it locked up tight.
Read 7 tweets
23 Feb 20
This week, Holyrood finally recognised the right of prisoners serving terms of less than 12 months in jail to vote. And not before time - 15 years after the ECHR ruled the UK's blanket ban was disproportionate. In other countries this is uncontroversial.
thenational.scot/news/18254991.…
Although the Government argue they've been forced by law to do this - which is substantially true - Labour and the SNP have clearly been on a bit of a political journey on this issue. Reading the official report, this didn't sound like pinching your nose & taking your medicine.
As recently as 2013, MSPs excluded all prisoners from the #indyref franchise, leading to the Moohan case in the UK Supreme Court. (The Justices, by majority, said this was lawful beause the right to vote under the ECHR doesn't extend to referendums). supremecourt.uk/cases/docs/uks…
Read 5 tweets
20 Sep 19
Tend to agree with this. It is worth remembering what precisely the UK Supreme Court - as opposed to the partisan spin - decided was wrong with the original scheme, when it was challenged by the Christian Institute.
The legal challenge was mounted under Article 8 of the ECHR - the right to privacy and a family life. This is a cruicial right, but it is not an unlimited one under the Convention, for obvious reasons.
If states wish to interfere with ECHR rights of this kind, they must demonstrate 3 things. One: a legitimate aim. Two: the interference is "according to law" - has an adequate legal basis. And three: that it is "necessary in a democratic society". Which is to say: proportionate.
Read 6 tweets
30 Aug 19
Several media reports from the Court of Session getting WAAAY ahead of themselves, by suggesting Lord Doherty knocked back the substance of the challenge to the lawfulness of proroguing Westminster today. Not so. This morning, he refused only to issue an interim interdict.
Headlines like "Boris Johnson can prorogue parliament, Scottish judge rules" are extremely misleading. (Though the first instance judge may well reach this conclusion next week).
That one is from the Guardian, by the way.
Read 4 tweets
29 May 19
A thought about the Referendums Bill. Section 33 of the Scotland Act allows UK law officers to fast track a legislative competence challenge to primary legislation straight to the Supreme Court. There is no parallel provision for executive decisions... legislation.gov.uk/ukpga/1998/46/…
Net effect, if this is right and I haven't missed anything essential (which is a possibility)? Then UK ministers could not immediately refer the legality of any independence referendum under the Referendums Bill to the Supreme Court...
Which would mean that any action to challenge the legality of executive action would have to be taken by a standard judicial review process, which would begin in the Outer House of the Court of Session rather than London.
Read 7 tweets

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