Introduction

In the case of Avaaz Foundation v Scottish Ministers ([2021] ScotCS CSOH_119), the Scottish Court of Session addressed significant questions regarding the delegation of authority within the Scottish Government concerning Unexplained Wealth Orders (UWOs). The Avaaz Foundation, a prominent non-profit organization focused on combating corruption, sought judicial review of the Scottish Ministers' policy which delegated the responsibility for UWOs. Specifically, the petition questioned whether the Scottish Ministers could delegate this authority to entities such as the Lord Advocate, especially in high-profile cases like that involving former United States President Donald J. Trump.

Summary of the Judgment

The Court, presided over by Lord Sandison in the Outer House, ultimately dismissed the petition filed by the Avaaz Foundation. The judgment clarified that the Scottish Ministers retain the authority to decide on the issuance of UWOs and that delegation of this responsibility to the Lord Advocate does not infringe upon statutory provisions. The Court found no legal basis to restrict the Lord Advocate's role in this context, affirming the existing framework under the Proceeds of Crime Act 2002 (POCA) and the Scotland Act 1998. Consequently, the declaratory relief sought by Avaaz Foundation was refused, upholding the Ministers' policy and delegation practices.

Analysis

Precedents Cited

The Court referenced several key precedents to underpin its decision:

• Wightman v Secretary of State for Exiting the EU [2018] CSIH 62 and 2019 SC 111: These cases addressed issues of public law and clarified the roles and responsibilities of government ministers.
• Kapri v Lord Advocate [2013] UKSC 48: This Supreme Court case was pivotal in discussing the separation of functions between the Scottish Ministers and the Lord Advocate, especially concerning extradition proceedings.
• Somerville v Scottish Ministers [2007] UKHL 44: Highlighted the balance between governmental policies and the principles of open justice.
• Re Buick [2018] NICA 26: Reinforced the application of the Carltona principle, which allows civil servants to exercise ministerial powers.

These precedents collectively reinforced the Court's stance on the proper allocation of responsibilities within the Scottish Government and the limitations of delegating ministerial functions.

Legal Reasoning

The judgment meticulously dissected the statutory framework governing UWOs. Key points included:

• Proceeds of Crime Act 2002 (POCA) Sections 396A and 396D: These sections outline the provisions for issuing UWOs and the subsequent actions following their issuance.
• Scotland Act 1998, Section 52: Clarified the roles and functions of Scottish Ministers versus retained functions of the Lord Advocate.
• Delegation versus Implicit Repeal: The Court assessed whether POCA implicitly prevented the Lord Advocate from holding portfolio responsibility, concluding that no such implication existed.
• International Obligations: The petitioner argued that international standards, particularly under the Trade and Cooperation Agreement (TCA) between the UK and EU, impose a duty to issue UWOs. The Court countered that while POCA aligns with such standards, it does not elevate the issuance of UWOs to a binding duty in every applicable case.

The Court emphasized that the decision to issue a UWO remains within the discretionary powers of the Scottish Ministers, even when such powers are delegated to the Lord Advocate. The principle of collective responsibility remained intact, ensuring that the Ministers could act cohesively in these matters.

Impact

This judgment has significant implications for the operation of the Scottish Government's legal frameworks:

• Clarification of Delegation: Reinforces that the Scottish Ministers can delegate UWO responsibilities without violating statutory mandates.
• Role of the Lord Advocate: Affirms that the Lord Advocate can act as the designated Minister for seeking UWOs without impinging upon her retained functions.
• Judicial Review Limitations: Limits the grounds on which organizations like Avaaz can challenge ministerial policies, emphasizing the breadth of ministerial discretion.
• Policy Transparency: While the "neither confirm nor deny" policy remains, the judgment underscores the necessity for such policies to be legally justified, especially in high-profile cases.

Future cases involving UWOs will reference this judgment to understand the boundaries and allowances of ministerial delegation within Scotland's legal system.

Complex Concepts Simplified

Unexplained Wealth Orders (UWOs)

UWOs are legal instruments introduced under POCA to prevent the laundering and concealment of illicit funds. They require individuals to disclose the origins of their wealth when it appears disproportionate to their known lawful income. Failure to comply can lead to asset confiscation.

Politically Exposed Persons (PEPs)

PEPs are individuals who hold or have held prominent public positions, making them higher risk for involvement in corruption or money laundering due to their influence and access to public resources.

Carltona Principle

This principle allows civil servants to exercise powers on behalf of a minister, ensuring governmental functions remain uninterrupted even during absences or transitions in ministerial roles.

"Best Endeavours"

A standard of obligation in law requiring a party to take all reasonable steps to achieve a specified outcome, though not making it absolutely mandatory.

"Neither Confirm nor Deny" Policy

A policy adopted by government entities to refrain from disclosing specific operational details, particularly in sensitive or high-stakes situations, to protect national interests or ongoing investigations.

Conclusion

The judgment in Avaaz Foundation v Scottish Ministers serves as a pivotal reference concerning the delegation of ministerial powers within the Scottish Government. By upholding the Ministers' right to delegate the responsibility for issuing UWOs to the Lord Advocate, the Court reinforces the structural integrity of governmental functions and the balance of powers. While the petition's dismissal may raise concerns about transparency, the judgment delineates the legal boundaries within which governmental discretion operates. This clarification ensures that future litigants and governmental bodies alike understand the extents and limits of their authorities, fostering a more predictable and legally coherent environment in the realm of anti-corruption measures and wealth regulation.