Introduction

The case of Avaaz Foundation vs. Scottish Ministers ([2021] CSOH 81) presents a pivotal moment in Scottish judicial review practices, particularly concerning the application of Unexplained Wealth Orders (UWOs) under the Proceeds of Crime Act 2002. Avaaz Foundation, a Delaware-incorporated non-profit organization, sought judicial review against Scottish Ministers for their approach in applying UWOs, specifically questioning the procedural aspects and potential failure to act regarding former US President Donald Trump's assets in Scotland.

The key issues at stake included the delineation of responsibilities for initiating UWO applications, the possibility of delegating such authority, the standard of legal behavior required, and whether there exists a mandatory duty to apply UWOs when criteria are met. Additionally, the petitioner challenged the ministers' alleged inaction in relation to Mr. Trump's assets.

Summary of the Judgment

Lord Sandison presided over the Court of Session's Outer House and concluded that Avaaz Foundation's petition had substantial grounds. Initially, the petition was deemed late as it surpassed the three-month filing period stipulated by the Court of Session Act 1988. However, after a subsequent hearing, Lord Sandison exercised discretion under section 27A(1)(b) to extend the time limit, allowing the petition to proceed.

The decision was influenced by the public importance of the issues raised, particularly the administrative responsibilities concerning UWOs and the integration of EU-derived law post-Brexit. Despite the delay in filing, the court recognized that acknowledging and addressing the responsibilities and legal frameworks governing UWOs held significant implications for future governance and legal interpretations.

Analysis

Precedents Cited

The judgment referenced several key cases that shaped the court's understanding and application of the law:

• Wightman v Advocate General [2018] CSIH 18: This case highlighted factors the court considers when exercising discretionary extension of time limits.
• EnergieKontor UK Limited v Advocate General [2020] CSOH 17: Reinforced the considerations for extending time limits based on delay and the interests of justice.
• R (Burkett) v Hammersmith and Fulham LBC [2001] Env LR 39 (CA): Provided context on the importance of interpreting legislation purposively, especially EU-derived laws.
• Laster v Forth Dry Dock & Engineering Co Ltd 1989 SC (HL) 96: Emphasized the necessity of purposeful interpretation of statutory provisions.
• Case C-243/15, Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín: Addressed the supremacy and effective application of EU law within member states' jurisdictions.

These precedents collectively underscored the judiciary's role in balancing procedural adherence with substantive justice, especially in contexts involving administrative responsibilities and international legal frameworks.

Legal Reasoning

Lord Sandison's legal reasoning revolved around the equitable discretion granted to the court to extend procedural time limits. The court meticulously evaluated the reasons for Avaaz Foundation's delay, including their attempts at political lobbying and the complexities introduced by Brexit-related legislative changes.

Central to the judgment was the interpretation of section 27A(1)(b) of the Court of Session Act 1988, which allows for extensions in the interest of justice. The court weighed factors such as the absence of prejudice to the respondents, the public importance of the legal questions raised, and the potential hindrance to effective legal remedy if the petition were dismissed solely based on procedural technicalities.

Additionally, the court addressed the interplay between domestic procedural rules and EU-derived law. While recognizing the supremacy of EU law pre-Brexit, Lord Sandison opined that ensuring the full and effective application of such laws could be managed within the existing procedural framework without necessitating separate judicial interventions.

Impact

The judgment has far-reaching implications for future judicial reviews in Scotland, particularly concerning procedural time limits and the application of discretionary extensions. Key impacts include:

• Clarification of Judicial Discretion: Reinforces the court's broad discretion to extend time limits when compelling public interest is present.
• Guidance on EU-Derived Law Post-Brexit: Establishes a framework for addressing EU-derived legal aspects within domestic procedures, ensuring that international obligations continue to influence Scottish law.
• Precedent for UWOs and Administrative Responsibility: Sets a foundational precedent for how administrative bodies should approach UWOs, emphasizing accountability and legal clarity.
• Procedural Flexibility: Highlights the need for flexibility in procedural rules to accommodate complex legal and administrative challenges.

Future cases involving similar delays or the intersection of administrative duties and international law will likely reference this judgment to justify procedural leniency or to navigate the complexities introduced by Brexit.

Complex Concepts Simplified

Conclusion

The judgment in Avaaz Foundation vs. Scottish Ministers underscores the Scottish judiciary's commitment to upholding substantive justice over procedural rigidity, especially in cases of significant public interest. By exercising discretion to extend time limits, the court acknowledged the complexities inherent in administrative law and the evolving legal landscape post-Brexit.

The decision serves as a critical reference point for future litigants and public bodies alike, emphasizing the importance of balancing procedural compliance with the overarching principles of fairness, accountability, and effective legal remedy. As administrative responsibilities and international legal obligations continue to intersect, this judgment provides a nuanced framework for navigating such challenges within the Scottish legal system.

Ultimately, Lord Sandison's ruling not only addressed the immediate concerns of the petition but also laid the groundwork for more flexible and responsive judicial processes in the face of complex legal and administrative issues.