CAMPAIGNERS have won the right to pursue proceedings against ministers over their refusal to commission investigations into how former president Donald Trump financed the purchase of his Scottish golf courses.
Lord Sandison has given permission for a judicial review to appeal the Scottish government’s decision not to pursue the probe.
Avaaz, an international human rights organisation which is incorporated in Delaware, has been pursuing ministers in relation to how Mr Trump, 75, was able to finance the purchase of golf courses at Turnberry, Ayrshire, in 2014 and Menie, Aberdeenshire, in 2006.
The group had questioned whether ministers had acted unlawfully in failing to make an application for an Unexplained Wealth Orders (UWO) in relation to Mr Trump’s assets in Scotland.
The UWO mechanism was introduced in 2018 to help authorities fight money laundering and target the illicit wealth of foreign officials.
The Trumps have said that claims the golf courses were acquired by illegitimate means have “no basis in fact”.
At a previous hearing, Ruth Crawford QC, acting for the Scottish government, said that legal rules stated that Avaaz should have raised their case within three months of the Holyrood administration’s refusal.
The position of ministers over the responsibility for seeking UWOs more generally had been made clear in correspondence from May 2019 onwards.
Lord Sandison said that he believed the action brought by Avaaz had a “real” chance of success but ruled that the organisation had not brought the proceedings within a time limit.
He then asked the lawyers in the case whether the court could use its discretion to waive the limit.
Avaaz argued that substantial prejudice would be caused to them and to the public interest were the petition not to be permitted to proceed.
According to a court ruling, ministers argued that it would be “disproportionate” to grant an extension of time to allow the petition to proceed “with the necessary consequent call on the public resources of the ministers and the court, particularly where any true public interest could be vindicated in suitable future proceedings if the need arose”.
But Lord Sandison said:”I grant permission for the petition to proceed without condition or restriction.”
He indicated that he did not understand an argument of counsel for ministers that some aspects of the case did not raise matters of such live and substantive public importance as to render it in the interests of justice to allow it to proceed.
From the Avaaz website
But he said the tenor of Avaaz’s briefing paper of April 2019 gave “plain grounds for scepticism” that its motivation in bringing the case was truly a desire to clarify the somewhat technical aspects of the general law which arise, as opposed to a desire to “further a political agenda to oppose the interests of Mr Trump by any means available”.
Lord Sandison had asked if Avaaz would take the Donald Trump case out of the equation and pursue the case on the grounds of the general legal position over where responsibility for deciding whether to make applications for UWOs lies.
Avaaz said reluctantly, that it would proceed on that basis.
But Lord Sandison decided not to pursue that.
He said: “I came to the view that since the pre-litigation correspondence and dispute had all concerned Mr Trump’s case it would be artificial to require the petition to proceed on what would be an unhappily semi-abstract basis, and that in the event that the petition were to succeed in its general aims it would be unnecessary and unfortunate if the question of the import of the decision for Mr Trump’s case were to be left as a matter of inference only.
“On the whole then, having regard to the general and continuing public importance of the legal questions raised by the petition and the lack of specific prejudice to the Scottish ministers or others were it to be permitted to proceed out of time, I consider it to be in the interests of justice to extend the time limit for lodging the petition…”
He said there was “considerable delay” between the point in time at which Avaaz could have come to court make the complaint.
He said: “That the Scottish ministers were indeed determined to adopt a position in relation to the responsibility for seeking UWOs which the petition castigates as unlawful, both in general terms and in relation to Mr Trump, ought to have been (and moreover, apparently was) clear to the petitioner by mid-2019 at the latest.
“That the petitioner sought to have its dissatisfaction with that position addressed by political rather than legal means for some period thereafter might be considered an abstractly reasonable course of action for it to take, but does not elide the fact that grounds of action came into existence and were not insisted upon until long after the three-month period envisaged….
“That an inevitably uncertain political resolution to a matter in dispute is being pursued is not something that could normally be regarded as going to the preservation, even indirectly, of an available legal route to such resolution which is not timeously taken.”
He said a “strong antidote” to the delay comes from the fact that the ministers were unable to point to any prejudice that would flow from the petition now being permitted to proceed “beyond the public time and expense that would be incurred in dealing with it”.
He said: “Time and expense would have had to be devoted to dealing with the petition in any event had it been timeously raised.”
Scottish Greens have welcomed the news that the courts will review Scottish Government ministers ability to grant a UWO on Donald Trump’s acquisition of Scottish golf courses.
It said Avaaz’s action came off the back of a Scottish Greens motion in February to pursue an UWO, also known as a McMafia order.
They said that in February the Scottish Government said such decisions should be free of “political interference”, even though ministers have the sole responsibility to seek such an order.
Scottish Greens co-leader Patrick Harvie, who brought the motion in February, said: “I’m glad we are a step forward in getting some clarity over why Trump’s business dealings in Scotland haven’t been investigated. It should never have got to the stage of a legal challenge from an NGO for the Scottish Government to confirm or deny whether they will seek a McMafia order.
“Scotland’s reputation is at stake, and it is entirely within the powers of ministers to defend it. An unexplained wealth order would be a clear signal that business in Scotland must be transparent and accountable, no matter the individual involved.”