Public Law

Public law can be defined as the law governing relations between estate and its citizens.  It covers aspects of administrative or constitutional law.  In some ways criminal law can be seen as an extension of public law and the rules governing criminal procedure apply to restrict the manner in which the state can intrude upon the lives of citizens.

Prison law is an aspect of public law in that the State incarcerates prisoners and does so with reference to a broad range of rules and regulations laid down by Parliament and the common law.  Taylor & Kelly practice in the field of prison law.  Their challenges can be read about here.

In the field of public law Taylor & Kelly have advised clients upon:

  1. Mental health law
  2. Community care
  3. Learning Disability
  4. Dementia

In many of these areas, citizens of the State complain about the legal regulation of the State’s intrusions upon their physical and economic wellbeing.

Taylor & Kelly have been instrumental in changing the law of Scotland in several respects.  Prior to cases taken on behalf of prisoners instructing Taylor & Kelly, the Courts were precluded from making an order forcing or ordering the Government to do something or to refrain from doing something.

On the back of Mr Napier’s challenge to conditions in C Hall in HM Prison Barlinnie other prisoners sought transfer from their cells which, it was argued, breached Article 3 of ECHR.  The Government successfully resisted these interim challenges on the basis that an obscure piece of legislation (Section 21 of the Crown Proceedings Act 1947) meant that the Court had no power to grant such orders.

The various decisions in the case of Davidson v Scottish Ministers turned this accepted legal canon on its head.

Read Lord Johnston’s refusal to grant the transfer to Mr Davidson here: 2002 SCLR 166.

An appeal was taken against that decision and heard before the Inner House of the Court of Session, Scotland’s highest civil appeal court.  That too was unsuccessful: .2002 SC 205.  Read the judgment here.

However, a former Lord Advocate now a serving judge sat upon the Court.  He had, in the the course of legislation passing through the House of Lords, passed comment upon the very section in issue in the appeal.  A successful challenge was taken to that appeal decision: 2003 SC 103.  Read the Court’s opinion here.

The Scottish Ministers appealed that decision to the House of Lords unsuccessfully: 2005 SC (HL) 7.  Read what the House of Lords said here.

The House of Lords sent back the matter for consideration as to whether the quashed decision should itself be the subject of appeal.  The Court of Session granted leave to appeal.

The House of Lords authoritatively determined in Davidson v Scottish Ministers that the full panoply of remedies was available in judicial review proceedings against the Government.  Read the landmark decision here: 2006 SC (HL) 42.

In the course of this long running, some would say epic battle, various other mechanisms were tried to secure orders on behalf of clients improving their conditions of detention i.e. asking the Court to order the Government to do something or to stop the Government from doing such things.  Read about the various challenges here.

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