of the law society of scotland

Transcription

O F T H E L AW S O C I E T Y O F S C OT L A N D
VO L U M E 4 5
NUMBER 2
F E B RUA RY 2 0 0 0
INDEX
VIEWPOINT
President’s Report
Contents
Regular Features
PRESIDENT’S REPORT
NEWS
PAGE 5
PAGES 8, 10, 11, 12 & 13
PROFESSIONAL BRIEFING PAGES 32-38 & 41
PAGES 42 & 43
CLASSIFIED
PAGES 44-46
RECRUITMENT
PAGES 47-60
B
Crown Agent Andrew Normand
COMPETITION LAW
The new regime begins in March
HUMAN RIGHTS
Glasgow law graduates teach students in Bosnia
MATERNITY LEAVE
The new provisions are discussed
ANDREW NORMAND
Roger Mackenzie talks to the Crown Agent, who rejects
any talk of a crisis in the fiscal service
PAGES 16-19
PAGES 22 & 23
PAGES 26-28
PAGES 30 & 31
Y the cringe, January is an endless
month. It seems to start on Boxing
Day and lasts until Easter. What
earthly purpose does January actually
have. Once you have trawled through
the sales and decided that you really have no
need for that v-neck fair isle that appears
every year what do you do in this
interminable month. This year in response to
the Millennium buzz we all felt (didn’t we?)
I decided to clear the clutter. I was well fit to
do this as my Millennial celebrations were of
a douce nature suited to my age and marital
status. As A.A. Gill observed, New Year is
about pulling and once you have pulled what
is the point. I of course pulled in some style
many years ago so I am with Mr Gill on that.
It was no great burden to hurl all the herbs
and spices with a sell by date more than two
years ago (as recommended by the saintly
Delia) but I was torn when it came to my
medals and certificates all of which were
tastefully mounted on wooden plaques.
Certificates and medals in what? Well I am in
fact one of the few recent dancing Presidents
and I have the certificates and medals to
prove it. I had originally determined that
mine would be the dancing Presidency. No
more boring Council Meetings – how about
a Tea Dance? We do suffer from a dearth of
opposite-sex dancing partners but as one
who endured six years of single sex
education I am capable of and more than
happy to dance with Michael Clancy. He is
very nippy on his feet which are
conveniently small and as I am taller than
him I’d get to be the man. This ambition I
have yet to realise or indeed
discuss with the Council but
perhaps now that I have
disclosed this hidden talent I will
not
make some progress.
Next up was the miscellaneous
cupboard where I discovered the
old spray can of starch which I
with without actually going too far into a
shop. The purse bearer is a poor shopper;
getting her into a shop is a major
achievement and then you have to hold on to
her quite firmly or she bolts. Still, those of
you married to more enthusiastic shoppers,
and recovering from the January Master
Card statement might regard aversion as
used to apply to my falls (or drops as my something to be cherished.
mother-in-law called them) when I was a
But now that January has drawn to a close
temp. As I resigned my commission some and there are serious matters waiting in the
years ago and they are now a rare, if not wings. The first of these, which is high on my
protected, species I could surely dispose of agenda is Civil Legal Aid Fees. Like most
this. On the other hand why not use it on my Court Firms mine has always provided a
shirts and raise the Presidential turnout to Legal Aid service and like most Firms that
an even higher level, so back in the cupboard. service is precisely the same as is delivered to
A few days later I tackled the ironing (you private clients. I like to think that my Firm
will notice I do my share of the domestic has a reputation both within the profession
tasks in our household – simple system – I and generally for the quality of our Court
do them she doesn’t). As I admired a crisp work and until now that same quality has
pile of shirts I noticed that I had been applied to the whole range of our client base
wielding a can of wasp repellent rather than but as the gap between Judicial Table and
starch but it seemed to have done the job and Civil Legal Aid Table widens this becomes
kept me entirely wasp free although the fact increasingly difficult. I assume we are not
that it was January might have contributed.
alone in this and that we are all agreed that if
I eased gently back into the saddle with a the Judicial Table is fixed at a level which
couple of Judicial Installations and lunch provides a reasonable remuneration for work
with Eddie George. Having ensured that the done then the Civil Legal Aid Table now
administration of justice was in tip top hands standing at about half the Judicial Table is
and the economy was sound I found myself not only not fair remuneration but one
once again at a loose end, so accompanied by which threatens the continuing provision of
the purse bearer I essayed a little shopping Civil Legal Aid. Civil Legal Aid accounts for
trip. Such trips always remind me of the only a proportion of the profession’s income
Springburn branch of D & M Hoey where and it is the public who have been so well
the bunnets were kept by the door so that served by it to date who stand to suffer from
the men could sidle in and purchase one of any threat to its continuance. This is not
the few items the wife could not be trusted about us, it is about all those people who
have a right to access to the law
and its remedies. If the Scottish
Parliament does not support that
The remuneration is not only
right we might as well pack up
fair but also threatens the continuing
and go home for who will need
their laws.
provision of Civil Legal Aid
‘
BOOKS
Michael Scanlan
FROM THE EDITOR
NEWS
Editor’s Introduction
www.lawscot.org.uk arrives on desks
PUBLISHERS
The Law Society of Scotland
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Disclaimers
The views expressed in the
Journal of the Law Society of
Scotland are those of invited
contributors and not necessarily
those of the Law Society of
Scotland.
The Law Society of Scotland does
not endorse any goods or services
advertised, nor any claims or
representations made in any
advertisement, in the Journal and
accepts no liability to any person
for loss or damage suffered as a
consequence of their responding
to, or placing reliance upon any
claim or representation made in,
any advertisement appearing in
the Journal. Readers should make
appropriate enquiries and satisfy
themselves before responding to
any such advertisement, or
placing reliance upon any such
claim or representation. By so
responding, or placing reliance,
readers accept that they do so at
their own risk.
© The Law Society of
Scotland, 1999
ISSN: 0458-8711
F
OR years the scuttle-but
has had it that the
Crown Office has been a
place of work overload,
stress related illness and
absenteeism all of which
could, to a greater or lesser
extent, be sourced all the way
back to a basic lack of funding.
There are those within the
profession, particularly from
lawyers working in and
around our courts, who have
been quick to tell tales of
misery and distress coupled
with the usual cries of
“something must be done”.
However, the pressure took
a more public twist when the
Press, so often vilified by the
legal profession for its knee
jerks reactions and lack of
balance, began to take a
serious interest in the Crown
Office and its apparent
problems.
The stories rained down but
how true are they? In this
issue of the Journal, we
offered Crown Agent Andrew
Normand, the opportunity to
speak back from a well
balanced platform about the
organisation he heads and the
challenges it faces on a day to
day basis.
Not surprisingly perhaps,
the picture which emerges is
very different to the one
which has been portrayed in
the columns of some of our
Starting time of the
High Court
JUDGES have become
increasingly concerned about
the delays which occur at the
start of the day’s proceedings in
H i g h C o u r t t r i a l s. T h e i r
experience is that only very
rarely is the Court ready to sit
promptly at 10.00am. The
result is a considerable waste of
time for all concerned.
In order to remedy this
situation, the judges intend in
future to sit at 10.00 am sharp
on every day of the sitting,
including the first day. The
Court will expect the jurors to
be in their place by that time, as
also counsel and the accused.
Arrangements should therefore
be made by all those concerned
to ensure that this happens.
If for some reason business
cannot start at the appointed
time, the judges intend to sit
none the less and they will
expect counsel to explain the
situation and to ask in open
court for any appropriate
adjournment.
The Notice came into effect as
from Monday 14 February
2000.
Lord Justice General
national press. And Mr
Normand does not miss and
hit the wall.
Popular wisdom, he says,
“reflects a distorted
representation” of his
department which can find its
roots in “myth and
m i s i n f o r m a t i o n .” I n a n
extended interview, Mr
Normand sets the record
straight on what is actually
happening within the Crown
office.
On another subject, can I
recommend the Society’s new
website to all members. A
tremendous amount of work
has gone into revising ,
updating and developing what
should in the future prove to
be an extremely valuable tool
for the profession.
P
OSTCARDS have been
arriving on solicitors’
desks, highlighting the fact
that the Society’s new web
site is now on-line. The
colourful postcards are designed
to ensure that the web site
address comes readily to the eye
and to the mind. The Society is
particularly keen for solicitors to
log into the Solicitors’ Forum, as
well as taking advantage of the
other services the web site
provides. Development of the site
is continuing weekly, with added
functionality and greater ease of
use. The Society is keen to hear
any suggestions for useful
additions from members. Just
simply start a new thread in the
Forum and, perhaps, provoke a
bit of debate. Alternatively, email
Linsey Lewin: [email protected] with any
comments or suggestions.
Strategies for
accessing law
Arbitration
course
A WEEKEND course entitled “An
introduction to Arbitration in
Scotland” held by the Chartered
Institute of Arbitrators (Arbiters)
Scottish Branch will take place at
the Green Hotel, Kinross, on
Friday 24 to Sunday 26 March
2000. The course will also fulfil
the Institute’s requirements in
preparation for Part I
Examination.
The course consists of a
practical workshop of lectures,
demonstrations and tutorials for
those unfamiliar with the process
of law of arbitration. Those with
some experience of arbitration
but no formal training will also
find the course of interest.
Further information and
application forms are available
from: Sandra Cassels, Education
Convener, Scottish Branch, Bird
Semple Solicitors, Napier House,
27 Thistle Street, Edinburgh
EH12 1BS or DX ED271.
Tel 0131 459 2345.
THE British and Irish Legal
E d u c a t i o n Te c h n o l o g y
Association are holding a
citations workshop at the
University of Edinburgh on
11th and 12th of March to
examine access to law in the
21st century.
Free the Law, a campaign
organised by the Society for
Computers and the Law and
with support from a number of
diverse organisations, has
demonstrated that access to law
is not as easy as it should be.
The workshop is intended to
bring together a number of
active participants in citation
research as well as users and
legal publishers to concentrate
on problems which have so far
militated against successful
implementation of any
proposed technical solutions.
Further information can be
obtained from Lesley Morrison
on 0131 650 2014 or e-mail
[email protected]
Registration of
second year
trainees with SLAB
AS there can be a delay
between a second year trainee
becoming enrolled and the
issue of a qualified practising
certificate, the Criminal Legal
Assistance registration process
can be delayed. An agreement
has been reached with the
Scottish Legal Aid Board that
when the Society writes to
newly enrolled solicitors
advising them of their new
status, a list of all those
solicitors will simultaneously
be forwarded by the Society to
the Board.
Where the Board have
received the trainee’s financial
mandate and CLA registration
form in advance, it should be
possible for them to process
registration on the basis of a
CLA registration process for
second year trainees. The
Society recommends as soon
as trainees receive their
qualified practising certificate,
they exhibit this to the
compliance partner in their
firm and also to the Scottish
Legal Aid Board.
NEWS
Salary rates
for trainees
EFFECTIVE from 1 June 2000 the
Society’s recommended rates of
remuneration for trainees will be
increased to £10,000 per annum
for a first year trainee and
£13,500 per annum for a second
year trainee.
Rights of
way searches
THE Scottish Rights of Way and
Access Society (formerly the
Scottish Rights of Way Society)
recently relocated to 24
Annandale Street, Edinburgh
EH7 4AN. Telephone and fax
number 0131 558 1222. E-mail:
[email protected] or
visit the web site at
www.scotways.demon.co.uk
The society provides a rights of
way search service to solicitors
and others. As of 1st January
2000, search fees are £50 for each
enquiry. No VAT is payable.
Authors wanted
THE Society has a joint books
agreement with the publishers
B u t t e r w o r t h s, t h e e x p r e s s
purpose of which is “to ensure
that there continues to be made
av a i l a b l e t o t h e S o c i e t y ’s
members and the legal profession
in Scotland a range of books and
publications on Scots law and
legal practice and related
subjects”.
The Society and Butterworths
would welcome suggested book
topics and authors willing to
write under the joint books
programme. All suggestions
should be sent to:
Alan Grierson, Editorial
Manager (Scotland),
Butterworths, 4 Hill Street,
Edinburgh EH2 3JZ or DX ED
211 o r e - m a i l A l a n a t
alan.grierson@butterworths.
co.uk
Turnaround times
The current average turnaround times in
working days from the Registers of
Scotland are as follows:
Sasine Writs: 53 working days with a
maximum of 78 days for the latest county.
Unattached Dealings with Whole*: 45
working days with a maximum of 62 days
for the latest county.
*An unattached Dealing with Whole is a
Dealing which is not dependent on the
processing of a prior First Registration,
Transfer of Part or Dealing with Whole for
its completion.
NEWS
Expenses in
small claims
P
RACTITIONERS might
be interested to note the
terms of the following
letter sent by Deputy
Minister for Justice
Angus MacKay MSP to Bruce
Ritchie, Director of the Law
S o c i e t y o f S c o t l a n d ’s
Professional Practice
department. Mr MacKay has
given permission for the letter
to be published in the Journal.
“Thank you for your letter in
connection with the statement
made by the Minister for Justice
on 31 August regarding Small
Claims and Summary Causes. In
particular you are seeking
clarification of that part of the
Minister’s statement relating to
expenses in claims exceeding
£1,000, with particular reference
to summary cause actions.
You will recall that in the
Consultation Paper issued by the
Lord Advocate, the views of the
consultees were sought on the
need for new levels of expenses to
be awarded should the small claim
limit exceed £750.
The proposals announced on 31
August by the Minister for Justice
have regard to the views
expressed by those who
responded to the Consultation
Paper. The responses received from
professional bodies such as the
Law Society, individual members
of the legal profession, consumer
organisations and the senior
judiciary as well as from a number
of other sources informed the
decision.
The proposals announced on 31
August would, if approved,
provide that:
a the present limit of £75 for
small claims up to £750 be
replaced with a new limit of
£100 for claims up to £1,000
b where the value of a small claim
exceeds £1,000 the expenses
should be limited to 10% of the
sum awarded subject to a
maximum limit of £100; and
c there should be no change in
the no expenses rule, so that for
small claims up to £200 no
expenses would be recoverable.
There are no proposals at
present to alter the method by
which expenses in summary cause
actions of whatever value are
calculated”.
By-election
of Council
member 2000
Frank Lefevre
I, Douglas Russell Mill,
Secretary of the Law Society
of Scotland, Returning Officer
for the purpose of the Byelection of members of the
Council of the Society,
HEREBY GIVE NOTICE that
the undernoted person has
been duly elected in an
uncontested election as a
member of Council of the
Society for the following
constituency in the Byelection held on the 17th of
January 2000.
Sheriff Court District
of Aberdeen,
Frank Hartley Lefevre,
Lefevre Litigation,
70 Carden Place, Queen’s
Cross, Aberdeen AB10 1UL
London Scots celebrate Burns
THE Society of Scottish Lawyers
in London held its annual Burns
Supper last month, an event
which has become renowned for
its high quality of speakers.
This year the toast to the lassies
was presented by Professor
Gordon McVie, Director General
of the cancer research campaign,
who in turn received a spirited
reply from Lady Olga Maitland.
Retired Glasgow solicitor Len
Murray provided a toast to the
memory of Burns.
Also in attendance were vice
president elect of the Law Society
of Scotland, Martin McAllister,
and Secretary Douglas Mill.
Anyone interested in joining
the Society of Scottish Lawyers
in London should contact John
Young at Lovells in London on
020 7296 2605 or Alastair
Watson at Fyfe Ireland in
Edinburgh, 0131 315 8158.
Pictured are: Alan Mills,
secretary of the Royal Scottish
Corporation and John Young,
president, Society of Scottish
Lawyers in London
Multiple claim
ANDERSON, Robertson
SSC, Cupar, have been
consulted in connection with
a dispute which their clients
have with Scottish Power
relating to the proximity of
high voltage electrical supply
equipment to property
owned by them. The clients
were attempting to sell the
property and upon valuation
reference was made to the
public perception that higher
than normal electromagnetic fields caused by the
presence of high voltage
equipment in close
proximity to the subject may
affect marketability and
future value. As a result of
this the saleability of the
property is substantially
reduced and the cost of
moving the sub-station in
question could be something
in the region of £15,000.
At this preliminary stage
Anderson, Robertson are
keen to establish whether
any actions or indeed
disputes have been reported
to by other agents in
Scotland relating to this
particular difficulty. They are
aware through media
coverage that there currently
seems to be a grey area
relating to the proximity of
certain forms of mobile
phone equipment to
property.
They can be contacted at 22
St Catherine Street, Cupar,
Fife KY15 4HH, DX 560538,
tel 01334 655200, fax 01334
654568.
Ian bags Family
top prize mediation
training
Ian MacLean of Steedman Ramage
is pictured receiving a set of golf
clubs after winning Aon Risk
Services’ free prize draw as part of
their exhibition at the Society’s
50th anniversary conference last
summer. Also pictured are Steve
Young, Development Director for
Scotland and Angus Cameron,
Director at Aon Risk Services.
David Eason, Munro & Noble won
an overnight stay for two at the
Gleneagles Hotel and Eric Merry,
Shield and Kyd, won a tracker
vehicle recovery system.
SCOTTISH solicitors
experienced in family law
interested in training as a
C A L M m e d i a t o r, p l e a s e
contact.
Ewan Malcolm, CALM
Trainer Convener, Drummond
Miller WS, 11 White Hart
Street, Dalkeith, Midlothian
EH22 1AE (DX 540570,
Dalkeith), e-mail
emalcolm@dmdalkeith.
demon.co.uk
They need 16 completed
applications so that we can fix
dates for six days of training
leading to an application to
the Law Society of Scotland
for accreditation as a Family
Law Mediator.
Please telephone Ewan
Malcolm on 0131 663 9568 if
you have any questions.
NEWS
NEWS
People on the move
ABERDEIN CONSIDINE & CO.,
Aberdeen, Aboyne, Ballater, Banchory,
C u l t e r, D y c e, E l l o n , I n v e r u r i e,
Kingswells, Peterhead, Stonehaven,
Torry and Westhill, are pleased to
intimate that Pamela Mairi Spalding
has been appointed an associate with
the firm with effect from 1st February
2000. It is also intimated that Shona
Spence resigned from the partnership
with effect from 31st December 1999.
THE ANDERSON PARTNERSHIP,
125 West Regent Street, Glasgow, is
pleased to announce that Morag A.
Gibb and Alan S. Taylor were assumed
into the partnership on 1st January
2000. On the same date, Jacqueline A.
Lewis and Pauline B. Palmer were
appointed as associates. They further
intimate that they have opened an
office at 1 St Colme Street, Edinburgh
EH3 6AA.
JOHN BEATTIE,
Brodick, announces that he retired at
31st October 1999. JAS. CAMPBELL &
CO, WS, Saltcoats are pleased to
intimate that they acquired the assets
of the practice at that date.
BLAIR & BRYDEN,
Dumbarton, Clydebank, Greenock, Port
Glasgow and Dunoon, are very pleased
to intimate that with effect from 1st
February 2000, their assistant Derek
Henderson Buchanan has been
appointed as an associate of the firm.
BLAIR CADELL,
Edinburgh, intimate that Karen Jack
has resigned from the partnership with
effect from 4th February 2000.
BOYDS,
Glasgow, are delighted to announce
that with effect from 1st December
1999, Brian Dennison, Michael Ferrie,
David Halliday, Simon Hay and
Andrew Warren became partners in the
business and that with effect from the
same date Kathryn Bowie and Helen
Carmichael became associates. Keith
Swinley, Corporate (consultant) and
Michael Fleming, Litigation (associate)
have also joined them. They further
intimate the opening of their
Edinburgh office at 2 Commercial
Street, Edinburgh, EH6 6JA, telephone
0131 554 8251, fax 0131 555 0570, DX
550864 Leith, email:
m a i l @ b o y d s l a w. c o m , w e b s i t e
www.boydslaw.com.
BURNESS,
Edinburgh and Glasgow, are pleased to
intimate that with effect from 1st
January 2000, associate Christa Reekie
has been assumed as a partner. Gordon
Murray ceased to be a partner with the
firm with effect from 17th December
1999.
BURNETT & REID,
Aberdeen, are pleased to intimate that
their assistant Ewan M. Campbell has
been appointed an associate of the firm
with effect from 1st January 2000.
COOPER & HAY,
Aberdeen, are delighted to report that
Keith Anderson Ingram, formerly a
partner in STRONACHS, Aberdeen, has
joined the firm as a consultant with
effect from 5th January 2000.
ALFRED W. H. DALLMAN,
intimates that he commenced practice
on his own account from Milngavie
Business Centre, 17 Station Road,
Milngavie, G62 8PG on 17th January
2000, telephone 0141 956 7027 and fax
0141 955 1571.
DONALD M. DODS is pleased to
announce, effective 5th January 2000,
his resignation from the Regulatory
Affairs department of Thus plc
(formerly Scottish Telecom) and
appointment as a solicitor in the
Central Legal Office of the Scottish
Health Service, Trinity Park House,
South Trinity Road, Edinburgh.
DONALDSON & CO,
86 Bell Street, Dundee, intimate that
their practice merged with ROD
DUNCAN & CO, 148 Nerthergate,
Dundee, as at 30th November 1999.
The new practice will carry on business
at 148 Nethergate, Dundee, telephone
01382 226035 and 01382 225558.
Roderick P. Duncan has retired from
private practice and the business is now
carried on by the sole partner Peter J.
Liddell.
The partners of GAIR & GIBSON,
Falkirk, and K.J. DOUGLAS & CO,
Falkirk, have pleasure in announcing
that with effect from 1st January 2000
their practices have merged. The firm
operates as GAIR & GIBSON
incorporating K.J. DOUGLAS & CO
from Hope Street, Falkirk. The partners
are Maurice B. Miller, Adrian J. Fraser,
Morag Fraser and Kevin J. Douglas. The
senior partner of GAIR & GIBSON,
Andrew J. Miller, retired as at 31st
December 1999. Mr Miller continues as
a consultant to the new firm.
HAMILTON BURNS & MOORE,
Glasgow, and COCHRAN SAYERS &
COOK, Glasgow and Edinburgh, are
pleased to intimate the amalgamation
of their practices under the firm name
of HBM SAYERS with effect from 1st
December 1999. The firm’s Glasgow
litigation business will be conducted
meantime from 13 Bath Street,
Glasgow, telephone 0141 353 2121 and
fax 0141 353 2181 and commercial and
private client business from 33a
Gordon Street, Glasgow, telephone
0141 248 5961 and fax 0141 248 2411.
HAMILTON BURNS & MOORE’S former
branches at Carlton Place, Glasgow,
Mount Florida, Glasgow and Clarkston,
Glasgow, and COCHRAN SAYERS &
COOK’S former office in Edinburgh
will remain as branches of HMB
SAYERS and their respective phone and
fax numbers remain unchanged.
HILL & ROBB,
Stirling, are pleased to announce the
appointment of Diane M. Clifford as an
associate of the firm with effect from
1st January 2000.
R.D. HUNTER & CO,
Cumnock, intimate that with effect
from 31st December 1999 John Martin
Mackie has resigned as a partner of the
firm. Mr Mackie continues to practise
on his own account at J.D. & S.
Macmillan, Mauchline.
A & S IRELAND,
Glasgow, are pleased to intimate the
appointment of Heather MacDiarmid
as an associate with effect from 1st
January 2000.
KETCHEN & STEVENS, WS,
Edinburgh and Glasgow, are pleased to
announce the amalgamation of part of
the former practice of FRASER
BROOKS & CO, WS, Edinburgh, with
the firm with effect from 1st December
1999. The firm will continue in
business as KETCHEN & STEVENS, WS,
from its four existing offices. It is
further intimated that Antony G. M.
Jones, solicitor advocate, has been
assumed as a partner and Gerald N.L.
Jones became a consultant.
JOHN LAURIE & CO,
Aberdeen, are pleased to announce that
with effect from 1st January 2000 their
assistant, Simon Liddiard, has been
appointed as an associate of the firm.
LEDINGHAM CHALMERS,
Aberdeen, Edinburgh, Inverness, Baku,
Istanbul and Falkland Islands, intimate
that on 21st January 2000 Jane
Elizabeth Chester in our Aberdeen
office was appointed an associate. On
31st December 1999 Steven Andrew
Love resigned as a partner in the firm.
LEONARDS,
Hamilton, intimate the retiral of their
senior partner Robert Irvine Gloyer
and of Paul Canning both with effect
from 31st January 2000.
LLOYD GREEN & CO, SCOTLAND,
are pleased to announce their opening.
The firm is based at James Sellars
House, 144-146 West George Street,
Glasgow, G2 2HG, telephone 0141 352
8700, fax 0141 352 8720, DX 561478
Glasgow 16, e-mail: [email protected]. The firm
specialises in personal injury claims,
Susan C. Montgomery, formerly with
MILLER SAMUEL & CO, Glasgow, joins
them as a partner with effect from 17th
January 2000.
SPECIALIST ACCREDITATIONS
The undernoted have been accredited as specialists in the following areas:
FAMILY LAW
Lisa Girdwood, Bonnar Mackenzie WS,
9 Hill Street, Edinburgh, EH2 3JT
INTELLECTUAL PROPERTY LAW
Scott Kerr, Steedman Ramage,
6 Alva Street, Edinburgh, EH2 4QQ
LYONS LAING,
Greenock and Glasgow are pleased to
intimate that with effect from 1st
November 1999, Fiona Elizabeth Lyons
and Mark Allan have been assumed as
partners and Julie Irene MacDonald has
been appointed as an associate of the firm.
MACADAM’S, SSC,
Edinburgh, are delighted to intimate
the appointment of C.E. Ross Hunter as
a consultant as from 1st January 2000.
Mr Hunter is primarily based at the
office at 14 Charlotte Square,
Edinburgh, and can be contacted by
calling 0131 226 7890.
ALLAN McDOUGALL & CO, S.S.C.,
Edinburgh, Dalkeith and Penicuik,
intimate the appointment of Fiona
Robertson Hardie and Julie Elizabeth
McCormick as associates of the firm
with effect from 1st January 2000.
MACKAY SIMON,
Edinburgh, are delighted to announce
that with effect from 1st January 2000
Amanda C. Jones, J. Christian Phillips
and Lindsey J. Watson were assumed as
partners of the firm.
McMICHAEL GRIEVE & ALEXANDER,
Dundee, are pleased to intimate that
with effect from 24th January 2000,
Deborah A. Colvin has been appointed
as an associate of the firm.
GEORGE MATHERS & CO,
Aberdeen, are pleased to intimate that
with effect from 1st January 2000 their
assistant, William A. Findlay, was
appointed as an associate.
Timothy Michael Pitt, formerly of
CMS CAMERON McKENNA (Aberdeen
office), intimates that he has joined the
London and international firm of
Norton Rose, based in their office in
Jakarta, Indonesia.
ROLLO DAVIDSON McFARLANE,
Cupar, are pleased to intimate that with
effect from 1st January 2000 Anthony
K. Anderson has been assumed as a
partner of the firm.
SCOTTISH HOMES LEGAL SERVICES,
Paisley, advise that as from 1st
February 2000 they shall no longer
h a v e a D X b o x n u m b e r. A l l
correspondence should therefore be
addressed to them at St James House,
25 St James Street, Paisley PA3 2HQ.
The telephone and fax numbers remain
as 0141 567 3191 and 0141 567 3190
respectively.
SHIELD & KYD,
Dundee, Edinburgh and Arbroath,
intimate the retiral of their senior
partner James William Coull with effect
from 31st December 1999. They are
pleased to announce the appointment of
Derek A Petrie, Stella M. McCraw and
Sandra A. Keene as associates of the
firm with effect from 1st January 2000.
STEWART & WATSON,
Turriff, Banff, Peterhead, Fraserburgh,
Oldmeldrum. Mintlaw, Buckie and
A b e rc h i r d e r, h av e p l e a s u r e i n
intimating that with effect from 1st
January 2000 their assistant solicitor R.
Murray McCheyne has been appointed
as an associate of the firm.
STORIE, CRUDEN & SIMPSON,
Aberdeen and Westhill, intimate that
their senior partner Melville F. Watson
has retired from practice due to illhealth with effect from 31st December
1999, but will continue to be associated
with the firm as a consultant.
STUART & STUART, W.S.
Edinburgh, Bonnyrigg and Penicuik,
intimate the retiral of Catherine Lowe
Johnston, WS, with effect from 31st
January 2000.
JAMES THOMSON & SON,
Kirkcaldy, intimate that A.R.Y. McInnes
retired from the partnership with effect
from 30th November 1999. All other
details of the firm remain unchanged.
TURNER MacFARLANE GREEN,
Glasgow, are pleased to intimate that
Scott Houston Colquhoun was appointed
an associate of the firm with effect from
1st January 2000. The firm continues
with the existing partners of John F.
Woods, Sheena J Savage, Mark Wilson,
Kevin Woods and Allan McKendrick.
VALENTE McCOMBIE & HUNTER,
Edinburgh, intimate the resignation of
partner C. E. Ross Hunter with effect
from 31st December 1999.
A.C. WHITE,
Ayr, intimate the retirement of their
partner Valerie H. Stephen with effect
from 31st December 1999.
LETTERS
OBITUARIES
Jumping the gun
Sir,
I write with respect to the
article with the above title
written by John Mayer
(Journal, January 2000)), in
response to my article in the
November edition of the
Journal.
Informed critical legal debate
is to be encouraged, indeed is
the essence of academic and
intellectual life within this
country. However it is quite
possible to disagree with the
position advanced by a person
without indulging in a
personalised attack. Mr Mayer
has overstepped the bounds in
personalising his attack on my
article. In particular when he
states “It is just as well that this
article was merely the work of
one academic, for if it were a
real judgment, it would not
only be dangerous but also
attract deep shame upon the
good name of Scottish
analysis.” The inescapable
inference from Mr Mayer’s
statement is that my work
reflects deep shame upon the
good name of Scottish legal
analysis. This constitutes a
clear, unequivocal, defamatory
attack on my professional
reputation.
Mr Mayer continues in a
personalised vein but I am
willing to characterise such
statements as “The proverbial
schoolboys knew.” and those
contained in the penultimate
sentence as “petty” and
demeaning of the author. They
do, however, point up the
personalised nature of Mr
Mayer’s attack on me.
Professor Rebecca Wallace
The Journal printed Mr Mayer’s
article as part of the continuing
debate on the interesting and
important topics raised by
Professor Wallace in her article
in our November edition. As
Advocate for one of the
accused, Mr Mayer clearly holds
strong views on the issues
raised in the case. Professor
Wallace clearly regards part of
the article as an attack on her
academic professionalism. The
Journal did not intend that the
article be so interpreted and
regrets that it was seen in that
light. The Journal may re-visit
this matter when the High Court
delivers an Opinion on the
Reference lodged by the Lord
Advocate. The current debate is
now completed.
Editor
Sense
at last
Sir,
I have just read with
wonder the letter from
Graeme McCormick
(December 1999). At last a
bit of sense and sense
which will be read
(hopefully) by every
conveyancer in Scotland.
I f M r M c C o r m i c k ’s
views are not immediately
adopted by the majority
then I will strongly
recommend to my clients
that they do not sell or
buy a house unless Mr
M c C o r m i c k i s
representing the other
side.
Yours faithfully,
Sheena Savage,
Turner Macfarlane
Green, Glasgow
Legal aid abatements
Clarifying
Registers of
Charges rules
Sir,
I have been contacted by a
number of solicitors who have
been experiencing difficulty
with the Legal Aid Board in
relation to criminal legal aid
accounts. As most legal aid
practitioners are aware, there is
increasing concern regarding
the Board’s treatment of
accounts. This has led to a
number of solicitors, exhausted
with correspondence with
SLAB, taking disputed accounts
to Taxation. Unfortunately, the
r e s u l t o f t h e s e Ta x a t i o n
Hearings are rarely publicised.
It would seem helpful to
practitioners and, indeed, the
Scottish Legal Aid Board, if the
results of these Taxation
WITH regard to the letter
from Mr J Henderson,
Registrar of Companies,
published under the above
title in January’s Journal,
paragraph three should
have read .
“I should like to set out
why, for the purpose of
registration in the
Register of Charges, I
have accepted advice that
under English law the
date of creation of a legal
charge over property in
England and Wales is the
date of execution and that
it is not necessary for
prior registration at HM
Land Registry.”
Hearings were known to enable
us to adapt our accounts in
terms with these recent
decisions.
It may be that a “Central
Register” of these decisions are
already available and if so, I
would invite interested parties
to write to the Journal with the
appropriate contact address.
If, on the other hand, no
Central Register exists it may
be time that solicitors consider
pooling information in such a
Central Register or Record.
It may also be helpful to
include in any Central Record
any concessions made by the
Scottish Legal Aid Board in
anticipation of a Taxation
Hearing. A number of solicitors
WRITE TO:
have indicated that they have
been contacted by the Scottish
Legal Aid Board to settle
accounts just before the matter
p r o c e e d e d t o a Ta x a t i o n
Hearing. Again, it would seem
helpful if solicitors were aware
of these concessions in their
dealings with the Board.
It may be that the Journal
would consider publishing
details of the Hearings
ensuring solicitors are kept up
to date on current Accounting
practices.
Yours faithfully,
Mark S. Hutchison
President, Scottish Court
Lawyers Association
The Editor, The Journal, Studio 62, Sir James Clark
or FAX on: 0141 561 0400
Professor Robert Arthur Burgess Obituaries
Professor of Law and NHS Trust Chairman
B
OB Burgess was only 53
when he died on 30
November 1999. He was
born on 24 February 1946
in Northwich, Cheshire and
educated at Sir John Deane’s
Grammer School there and at
University College, London. His
long-standing connection with
Scotland began (and I first met
him) in 1972 when, at the age of
26, he was appointed to a
lectureship in the Department of
Scots Law at Edinburgh
University. Even then, he was a
formidable figure with two years’
experience in banking and three
years’ experience in law teaching
under his (already quite
capacious) belt. He spent six years
in the Edinburgh Law Faculty, in
the course of which he obtained
his PhD degree (incidentally, in
the shortest time that has in the
post-war period been taken from
registration to graduation),
instituted and taught two groundbreaking Honours courses in Tax
Planning and Investment Law and
did the whole of the lecturing in
the large Ordinary course of
Taxation.
Of his period at Edinburgh, I
subsequently wrote: “As a teacher
he was particularly successful at
Honours level with small groups
of bright and highly motivated
students. Such students often
regarded Bob Burgess’s classes as
the high points of their
undergraduate careers. Students
at a lower level sometimes felt
somewhat intimidated by him.
His standards were high and he
required students even in his
Ordinary course to work hard and
to demonstrate a substantial
measure of competence before
they could expect to pass. He held
strong views on the maintenance
of academic standards and he
expressed those views forcibly.
There were those, a small
minority, who thought that the
standards which he required were
too high; but everyone respected
his views and found him
congenial as a colleague.”
From Edinburgh he went on in
1978 to a senior lectureship, and
subsequently a readership, at the
University of East Anglia. While
there, he served as Dean of the
Faculty of Law, a signal testimony
to the confidence and trust which
his colleagues there reposed in his
judgment. One of those
colleagues later wrote: “He can be
very forceful and outspoken. I
was at first worried that as Dean
he might not have the patience to
deal sensitively with staff
problems: he does like to foster
the image of being tough,
conservative and prickly. In fact
he is very concerned about
people’s feelings, though he
would cringe to hear it said about
him. He has made a very
successful Dean.”
During this period, Bob
maintained his links with
Scotland through annual railway
expeditions here (he was a true
railway enthusiast) and regular
attendance at AGMs of the Stair
Society. In 1989 he returned to
Scotland on his appointment to
the Alexander Stone Chair of
Business Law and Practice in the
Law School of Strathclyde
University. Within next to no
time he had been appointed
Chairman of the School, an office
he held from 1990 to 1994. To an
outsider such as myself, Bob
seemed to be an outstandingly
good Head of School. He was
certainly an outstandingly
hospitable one to visitors. Who
could resist any favour for the
Law School that Bob asked for
when it became known that one
of the perquisites of compliance
would be an extended lunch in the
Hotel School dining room?
His Law School colleagues
genuinely appreciated his
qualities, a fate not always
enjoyed by Heads of Department.
Among the views that since his
death have been communicated to
me are the following: he was an
ideal Head of Department, who
had excellent relations with
everyone; his door was always
open; if you approached him with
a problem or a query you always
got an answer and usually got it
there and then; if you approached
him with a proposal on request,
his preference was always to say
yes rather than no; he was never a
member of any clique – he would
have a drink with anyone; he was
a man who could make decisions;
he was an excellent, efficient and
decisive manager and one who
knew when to delegate and whom
to delegate to.
It was the recognition outwith
academic life of these qualities of
efficiency, decisiveness and
fairness that led to his being
appointed Chairman of Glasgow
Royal Infirmary University NHS
Trust, an office that he held from
1994 to 1997. In the latter year
health problems led him to resign
from both Strathclyde Law
School and the NHS Trust.
Bob Burgess was a prolific
author on legal subjects, with
books to his credit on perpetuities,
partnership, corporate finance and
the law of loans and borrowing,
many going into several editions.
B o b ’s w a s a l i f e f u l l o f
achievement, as professor, scholar,
and administrator. But the mere
recitation of these achievements
does not really give a true or full
picture of the man. What is
perhaps most obviously missing
from it is a recognition of his
sense of fun. He was a man who
greatly enjoyed laughter and had
a talent for generating it. He had
an impish sense of humour and
greatly enjoyed pricking bubbles
of pomposity wherever he
detected them. There was also the
frisson of danger that was rarely
absent when one was in his
company. Bob loved to make
outrageous comments and then,
with a mischievous twinkle in his
eye, watch the expressions on the
faces of his companions. And
there were few things that he
enjoyed more than a good-going
argument when someone dared to
challenge one of these opinions.
All of this was done in fun. It was
part of the excitement of being
one of his friends and what those
of us who were privileged to be
such will miss most now that he
has left us.
Bob Burgess was a devoted
family man. He is survived by his
wife, Shirley (also for years a
stalwart of Strathclyde Law
School) and his children, James
and Robbie. His first wife,
Frankie, predeceased him.
Professor Robert Black
University of Edinburgh
Building, Abbeymill Business Centre, Paisley PA1 1TJ
or E-mail: [email protected]
CHARLES MURRAY STEWART
WHITELAW.
(retired solicitor), Edinburgh.
On 7th July 1999, Charles Murray
Stewart Whitelaw, one time sole
practitioner, Edinburgh.
AGE: 85 ADMITTED: 1939
WILLIAM GEORGE MOODIE,
On 12th October 1999, William
George Moodie, formerly partner of
and latterly consultant to the firm
Keir, Moodie, Edinburgh.
KEITH GLOVER BLACK,
On 11th December 1999, Keith
Glover Black, formerly partner of
the firm Ramsay & McLaren,
Edinburgh and latterly consultant of
the firm Guild & Guild, WS,
Edinburgh.
DANIEL LOCKETT,
On 12th December 1999, Daniel
Lockett, formerly partner of and
latterly consultant to the firm
Maclachlan & Mackenzie, S.S.C.,
Edinburgh.
JOHN MILLER DUNDAS,
On 14th December 1999, John
Miller Dundas, formerly partner of
and latterly consultant to the firm
Gray Muirhead, WS, Edinburgh.
JOHN PITT,
Blairgowrie.
On 16th December 1999, John Pitt,
formerly partner of and latterly
consultant to the firm Miller
Gerrard, Blairgowrie.
DAVID LESLIE,
(retired solicitor), Kirkcaldy.
On 2nd January 2000, David Leslie,
formerly senior partner of the firm
of Gibson & Spears, Dow & Son,
Kirkcaldy.
DAVID TERENCE CROWE,
(retired solicitor), Girvan.
On 2nd January 2000, David Terence
Crowe, formerly partner of and
latterly consultant of the firm
Andrew Haddon & Crowe, Hawick.
WILLIAM LEWIS CONNON,
(retired solicitor), Aberdeen.
On 2nd January 2000, William
Lewis Connon, formerly partner of
the firm Mackenzie & Wilson,
Aberdeen.
DAVID ANDREW HARKESS,
Dunfermline.
On 13th January 2000, David
Andrew Harkess, partner of the firm
Stevenson & Marshall, Dunfermline.
SUSAN McGUINNESS,
Falkirk.
On 16th January 2000, Susan
McGuinness, associate with the firm
of Russel & Aitken, WS, Falkirk.
C O M P E T I T I O N L AW
Competition law: the new regime begins
RICHARD COCKBURN
offers a guide to the key
elements businesses
need to understand
about the new regime
for regulating
competition
Executive Summary
The new Competition Act 1998
comes into force on 1 March
2000. Businesses need to be
aware that:
• competition law which was
previously of little practical
relevance to small and medium
sized enterprises (SMEs) in the
UK, could now apply to SMEs
even where they are active only
in local markets;
• failure to comply with the new
Act could result in companies
being fined up to 10% of their
annual UK group turnover for
each year of infringement up to
a maximum of 3 years;
• directors, employees and other
officers of companies who
obstruct investigations by the
UK’s competition authorities
could face unlimited personal
fines or up to 2 years in prison;
and
• the best means of ensuring no
breach of the Act is to have in
place a competition compliance
programme.
Businesses have, therefore, only
a short time to prepare.
Why has the Act been
introduced?
The Act has been introduced to:
• give the UK a much more
effective competition regime, in
line with the Government’s aim
to boost consumer rights and
protections; and
• to harmonise the UK regime
with that existing at the EC
level so as to ease compliance
and to minimise the costs to
business of ensuring such
compliance. Indeed Section 60
of the new Act provides that the
UK authorities, when reaching
d e c i s i o n s, s h o u l d e n s u r e
consistency with the existing
EC case law and EC Treaty
principles. Relevant decisions
and statements of the European
Commission should also be
taken into account.
Similar regimes have been
recently introduced in countries
across the EC, such as the
Netherlands.
What does the Act do?
The Act contains 2 central
prohibitions:
• The Chapter I prohibition.
Based on Article 81 of the EC
Treaty (formerly Article 85
EC), this prohibition bans
agreements or practices which
have an effect in the UK or a
part of the UK (and can
therefore include local markets)
and which have the object or
effect of preventing, restricting
or distorting competition.
• The Chapter II prohibition. This
reflects Article 82 of the EC
Treaty (formerly Article 86 EC)
and bans the abuse of a
dominant market position
(again, in the UK or a part of
the UK).
The Act also grants the Director
G e n e r a l o f F a i r Tr a d i n g
(“DGFT”), who is currently John
Bridgeman, powers of
enforcement which are much
stronger than those which he
previously held. The DGFT will
exercise these powers through
his Office of Fair Trading (the
“OFT”). There are provisions
dealing with the concurrent
jurisdiction of utility regulators
under the Act and these are
summarised below.
The Chapter I
prohibition bans what
types of practice?
There is no exhaustive list of
the types of practices which
might be outlawed by the
Chapter I prohibition. However,
from the terms of the Act, the
guidance issued so far in respect
of the Act, and the considerable
body of existing EC case law, the
following (non-exhaustive) list
contains examples of practices
which could be caught by
Chapter I:
• Price Fixing:
This is the most obvious form
of anti-competitive practice.
Price-fixing
between
competitors will be banned.
Price-fixing cartels have been
attacked several times at EC
level. For instance, in
Polypropylene ([1988] 4 CMLR
347]), a price-fixing cartel was
condemned by the European
Commission.
• Market-Sharing:
The sharing of markets (by
customer or by geographic
area) will also be caught by
Chapter I. In the first decision
where a fine was imposed as a
result of the breach of EC
competition law, the members
of a quinine cartel who,
amongst other practices, had
divided up markets between
them were fined ECU 500,000
(Quinine [1969] CMLR D41).
• Fixing Trading Conditions:
The fixing of trading conditions
(e.g. the terms and conditions
applying to the provision of
goods or services) pursuant to
an agreement between
competitors can also be caught
by Chapter I. This is most likely
to appear in the context of a
trade association’s activities.
• Bid-rigging:
This is also known as collusive
tendering, where companies
e s s e n t i a l l y a g r e e, b e f o r e
submitting tenders for a
contract, who is to win the
t e n d e r. T h e n o m i n a t e d
successful tenderer then pitches
its bid below an agreed price,
whilst the other bidders tender
above that price.
This happened frequently in
the case of Pre-Insulated Pipe
Cartel (OJL 024, 30th January
1999).
• Information Exchanges:
The exchange of information
among competitors on sensitive
trading issues such as prices or
detailed sales data can be struck
down. In the Tractors case
([1993] 4 CMLR 358 (upheld on
appeal)), UK tractor
manufacturers such as John
Deere and New Holland Ford
were found guilty of breaching
competition law by exchanging
very detailed (and almost
current) sales data.
• Controlling investment /
production:
Agreements among
competitors to limit production
or investment in a particular
market may be caught by the
prohibition. For instance, the
European Commission fined a
Dutch quota scheme in the
dairy sector in the late eighties
(MELDOC, [1989] 4 CMLR
853).
• Joint Buying:
Joint buying, and joint selling
also, is where groups of buyers
(or sellers, as appropriate) agree
only to buy (sell) at certain
prices, thus limiting
competition in that sector. This
may also be subject to the
Chapter I prohibition.
This list is not exhaustive.
However, these types of practices
are not uncommon in everyday
trade, and in particular, sales staff
will need to be aware of the
hazards of engaging in such
strategies.
When does the Chapter
II prohibition apply and
what practices does it
prohibit?
The Chapter II prohibition will
only apply where a company has
a dominant market position. As a
rule of thumb, this is where a
company has a market share of
40% or more, but a company, in
particular circumstances, might
still be found to be dominant
notwithstanding a sub-40%
share. Bear in mind that this
could mean e.g. a 40% share of
the local market rather than just
a share of the total UK market.
Where a company does have a
dominant market position, there
are certain trading strategies
which it might be wary of
engaging in, so as not to harm
competition in its market:
• Abusive Pricing:
The company must take care
not to use its dominance to
charge excessively high prices.
In a case involving the market
for bananas, the European
Court of Justice (the “ECJ”)
held that “charging a price
which is excessive because it
has no reasonable relation to
the economic value of the
product supplied is...an abuse”
(United Brands [1978] 1 CMLR
429, quoted at page 9 of the
OFT’s Chapter II prohibition
guideline).
• Discriminatory Pricing:
Where the same price is
charged to different categories
of customers, or different prices
are charged to the same
category of customers, this
discrimination can be an abuse.
In the Hilti case ([1985] 1
CMLR 282, upheld on appeal),
Hilti was fined for (amongst
other practices) offering better
pricing terms to the principal
customers of Hilti’s main
competitors, compared to its
other customers.
• Discounts/Rebates/Loyalty
Bonuses:
Closely connected with
discriminatory pricing is the use
of discounting or rebate schemes,
or loyalty bonuses, to win and
retain customers from
competitors. For instance, BPB
was fined for using loyalty
payments to have builders’
merchants agree to stock only
BPB’s plasterboard (OJ [1989] L
10/50, upheld on appeal).
• Predatory Pricing:
T h e u n d e r- c u t t i n g o f a
competitor with the intention
of driving that competitor out
of the market can be an abuse
when carried out by a dominant
undertaking. AKZO was fined
ECU 10,000,000 for using
predatory pricing to try to
exclude a smaller competitor,
‘
And if there’s a concern
that a practice /
agreement may be
breaching the Act?
An agreement or practice can be
notified to the OFT for guidance
(or even a full-blown decision) as
to whether it is in breach of the
Act. Where guidance is sought,
this affords the notifying
undertaking the chance to amend
its agreement if it is in breach. It
is intended that there will be fees
for notifying though - £5,000 for
seeking guidance and £13,000 for
seeking a full decision. It is not
intended that there will be a
reduction in these fees for SMEs,
a point on which the
Government has been criticised.
Where an agreement is notified
for a decision as to the application
of the Chapter I prohibition, an
exemption can also be requested
(there are no exemptions under
If a company is dominant it needs
to take care not to act abusively even if it
is only dominant in a local market
ECS, from the UK and Irish
markets for benzoyl peroxide
([1991] ECR 1-359).
• Vertical Restrictions:
There is a whole range of other
practices which, when carried
out by a dominant company,
could constitute a breach of the
Chapter II prohibition. These
are discussed in the OFT’s
guideline on the Chapter II
prohibition and include re-sale
price maintenance, tying in
sales (bundling), and full line
forcing (forcing a buyer to buy
a whole range rather than just
one product).
Again, the above list is not
exhaustive, but if a company is
dominant, it needs to take care
not to act abusively or it may
find itself in breach of the
Chapter II prohibition, even if it
is only dominant in a local
market.
restrictions in that agreement
though must only be those
which are indispensable to
delivering the objective of the
agreement and must not have
the effect of eliminating
competition in respect of a
substantial part of the products
or services in question.
Is there a de minimis
provision?
The OFT has indicated that it
will not consider the Chapter I
prohibition to have been
breached where the aggregate
share of the parties under
investigation on the UK market
in question is no more than 25%.
The OFT will not consider, in
such circumstances, that there
will have been an ‘appreciable’
effect on competition.
There is no equivalent de
minimis provision for the
Chapter II prohibition.
However, where conduct has
been found to be anticompetitive and it is a “small
agreement” (in respect of the
Chapter I prohibition) or
“conduct of minor significance”
(in respect of the Chapter II
prohibition), the offending
companies will escape a fine. The
Secretary of State has yet to
define the terms “small
agreement” and “conduct of
minor significance” but it is
thought that these will be defined
by reference to the turnover of
the companies involved.
It should also be noted that in
addition to the de minimis
provision, there is also scope in
the Act for certain types of
agreements and practices to be
excluded from the ambit of the
Act altogether and this is
discussed below.
‘
S
INCE the Competition Act
received the Royal Assent
on 9 November 1998, much
has been written about the
impending new legislation
(and indeed, Kirsty Middleton of
Dundee University has
previously commented on the
draft bill in the Journal) (JLSS,
August 1998, Vol 43 No 8). In an
article to appear in a future
edition of the Journal
consideration will be given to the
application of the Act in a specific
industry, using the IT sector as a
c a s e s t u d y. S i n c e K i r s t y
Middleton’s Journal article, the
Bill has become an Act and a
number of finalised and draft
guidelines and rules have been
issued in respect of specific
aspects of the Act.
Given this, what are the key
points of which businesses
should now be aware? This article
gives a broad overview of the
main issues.
Chapter II). Exemptions take one
of 3 forms:
• a parallel exemption. This is
where the agreement in
question already has an
exemption at the EC level;
• a block exemption. This is
where the Secretary of State
has issued an Order that a
particular category of
agreements, so long as they
comply with certain specified
conditions, will obtain the
benefit of an automatic
exemption; and
• an individual exemption. It is
this exemption which can be
requested by notification to the
OFT. In broad terms, an
individual exemption may be
granted to an agreement which
contributes to improving
production or distribution, or
technical or economic progress,
and allows consumers a “fair
share of the resulting benefit”
(Section 9(a) of the Act). Any
Fines for infringement
It has now been announced that
the maximum fine for an
infringement of the Act will be
10% of the offending company’s
annual group UK turnover for
each year of infringement (up to
a maximum of 3 years).
The OFT has issued draft
guidance on how those fines are
to be calculated. The Government
is also considering what is to
What are the OFT’s
powers of investigation?
The Act grants the DGFT two
principal powers of investigation
where he reasonably suspects
that the Chapter I or Chapter II
prohibitions may have been
infringed:
•t h e p o w e r t o r e q u e s t
information; and
• the power to enter (and in
certain circumstances, search)
premises.
These powers will be exercised
through the OFT.
The OFT will be able to make 2
types of requests for
information. The first type is an
informal one – if the OFT asks
for particular information, the
recipient of the request need not
comply. However the second type
is a formal request – sanctions
(principally a heavy fine as noted
above) will be imposed on those
who refuse to comply.
The OFT can also enter
premises to carry out an
investigation – when
unannounced, such visits are
often called “dawn raids”. The
OFT can, without a warrant,
enter premises, ask for
documents to be produced or
request that staff explain the
contents of any documents. With
a warrant (which will be granted
by the Court of Session, or in
England, the High Court), the
OFT can force entry to premises
and, having entered premises
(forcibly or not) proceed to
search those premises. ‘Premises’,
importantly, includes vehicles
and domestic premises used for
business purposes.
Investigating officers can take
copies of documents (but not
communications between
external or internal lawyers and
the company). Documents can
even be taken away by the OFT
for up to three months where a
warrant has been obtained.
There is a defence against selfincrimination – no answer need
be given to a question from the
OFT which would constitute the
admission of an infringement. As
noted above, the obstruction of
the OFT’s investigatory powers
could attract significant
sanctions.
In the event of a dawn raid and
if there is no in-house legal
c o u n s e l o n t h e p r e m i s e s,
investigators will normally wait
for up to one hour for external
legal advisors to arrive, provided
the OFT is satisfied that the
investigation will not be
prejudiced by such a delay.
‘
monitoring and evaluation
system; and
• implementing an effective
document management regime.
An important part of educating
staff and ensuring a workable
monitoring system is the
production of a compliance
manual. This will, for example,
state company policy on
competition matters, outline
basic concepts in competition law,
list do’s and don’ts and give
contact details for the compliance
team. The manual should be
direct, relevant and designed for
everyday use.
As noted above, the OFT has
already stated that it will follow
the example of the European
Commission in competition
matters and treat more leniently
those companies which, although
they may have breached the Act,
had an effective compliance
programme in place at the time.
The OFT can, without a warrant, enter
premises, ask for documents or request that
staff explain the contents of documents
It is, however, advisable to be
prepared in advance for the
possibility of a dawn raid. In
particular the implementation of
a compliance programme which
is aimed at ensuring the company
does not breach competition law
is highly recommended. The
ready availability of a guide
detailing how to respond to a
dawn raid is also invaluable.
What is a compliance
programme and how can
it help?
A compliance programme is a
programme designed to enable
businesses to comply effectively
with competition law. The main
elements are:
• a legal audit of the company’s
existing agreements and
practices;
• educating staff as to what
competition law permits (and
prohibits);
• establishing a compliance team;
•c r e a t i n g a n o n - g o i n g
Transitional provisions
and exclusions
The Act provides that certain
types of agreement will be
excluded from the application of
the Chapter I and Chapter II
prohibitions. The Act also makes
certain
transitional
arrangements.
The exclusions are summarised
in the OFT’s guideline “The
Competition Act 1998: The
Major Provisions”. They include
for instance:
Agreements excluded from
the Chapter I prohibition:
• An agreement subject to
competition scrutiny under the
Financial Services Act 1986, the
Companies Act 1989, the
Broadcasting Act 1990, or the
Environment Act 1995;
• An agreement required to
comply with a planning
obligation;
• An agreement which has been
awarded a Section 21(2)
direction under the Restrictive
Trade Practice Act 1976
(“RTPA”) – i.e. the restrictions
in the agreement have been
considered and have been found
to be insignificant in
competition terms; and
• An agreement constituting a
designated professional rule.
Agreements excluded from
the Chapter I and / or Chapter
II prohibitions:
• An agreement or conduct to the
extent to which it would result
in a merger within the merger
provisions of the Fair Trading
Act 1973;
• An agreement or conduct which
would be a merger subject to
the scrutiny of the EC Merger
Regulation; and
• An agreement or conduct to the
extent to which it is made or
engaged in to comply with
specified legal requirements.
The above lists are not
exhaustive but, suffice to say,
there are a number of exclusions
available from the Chapter I and
Chapter II prohibitions.
It is currently envisaged that,
with some exceptions, vertical
agreements (e.g. an agreement
between a wholesaler and a
retailer) and land agreements will
be excluded from the application
of the Chapter I prohibition
Vertical and land agreements are
‘
constitute ‘turnover’ for the
purposes of the DGFT’s fining
powers.
In essence, the level of the fine
will depend, ultimately, on the
duration and seriousness of the
offence. Mitigating factors will be
taken into account such as
whether the company in question
had an effective competition
compliance programme in place
at the time.
It should also be noted that
directors, employees and other
officers of a company could face
imprisonment of up to 2 years or
unlimited fines for obstructing
an investigation by the OFT.
In essence, this means that any
fines which are imposed will be
reduced. The short term cost of
setting up the compliance
programme, can, therefore, save
much expense in the future, not
only in terms of reduced fines on
infringement, but also in terms
of saving management time.
Importantly, the Turnbull
report was issued in 1999,
offering guidance on how to
comply with the Combined Code
of Corporate Governance. The
report advises boards to ensure
that internal controls are in place
to manage areas of risk to their
businesses. The new Act will
constitute one such area of risk
and a compliance programme will
be an effective element of the
necessary risk management
response. It is widely believed
that the recommendations in this
report will be adopted by all
companies (not just listed
companies) as a standard of good
business practice.
not considered in detail here
although the new EC vertical
agreements block exemption
should also be borne in mind.
There are also transitional
provisions in the Act in respect of
the application of the Chapter I
prohibition. These are complex
and therefore are only considered
in general terms in this article.
The RTPA (which requires the
furnishing to the OFT of certain
restrictive agreements) will be
repealed as of 1 March 2000.
of the regulators?
The sectoral regulators and the
DGFT have formed a
Concurrency Working Party to
advise on these situations. Where
the DGFT and relevant
regulators are unable to agree
who should exercise jurisdiction,
it is envisaged that the Secretary
of State will decide.
To whom should agreements or
conduct be notified? In practice,
the notification will always be
sent to the DGFT, together with
an additional copy for
e v e r y regulator into whose
competence the notification
might fall. A further copy should
be sent directly to such
regulator(s).
In general terms, the impact
which the Competition Act will
have on the utilities sector,
particularly in light of these
concurrency provisions, is
expected to be significant. For
instance, OFWAT has already
indicated that it is contemplating
using the new Act to open up
English water companies’
pipelines to new entrants to the
water market.
The Scottish water industry is
also bracing itself for the impact
of the Act.
What happens under the
new Act to agreements
caught by the RTPA?
Broadly, agreements made prior
to 9 November 1998 and
properly registered and cleared
under the RTPA will be excluded
from the application of the new
Act. Pre 9 November 1998
agreements not caught by the
RTPA at all will receive a one
year “transitional period” (i.e.
the new Act will not apply until 1
March 2001).
Agreements made between 9
November 1998 and 1 March
2000 are only registerable under
the RTPA if they contain an
element of price-fixing or they
vary agreements previously
furnished under the RTPA. These
agreements, if duly registered
and cleared under the RTPA
before 1 March 2000, will receive
an exclusion from the Chapter I
prohibition. Agreements made
between 9 November 1998 and 1
March 2000 which are not
registerable under the RTPA will
receive a one year transitional
period.
Agreements made on or after 1
March 2000 will not be caught by
the RTPA (which will, of course,
have been repealed).
The register of those
agreements which have been
furnished to the OFT under the
RTPA will remain publicly
accessible, but it is expected that
access will gradually be limited.
Most agreements made pre 1
March 2000 will receive at least a
one year transitional period
before the Chapter I prohibition
will apply. Generally, the Chapter
I prohibition will only apply
immediately as of 1 March 2000
to agreements which have not
been duly registered under the
RTPA and to agreements made
on or after 1 March 2000.
Five year transitional periods
will be available to certain
utilities agreements.
There are provisions for the
DGFT to extend or terminate
transitional periods in certain
circumstances. There are also
provisions in the Act dealing
with orders and undertakings
under the old regime, together
with ongoing Restrictive
Practices Court proceedings.
Even from this brief review of
the exclusions and transitional
periods available under the new
Act, it is obvious that these are
complex and care needs to be
taken in their application.
Concurrency
As noted above, the new Act
also provides that sectoral utility
regulators will be able to exercise
powers concurrently with the
DGFT under the Act when
agreements (or conduct) relate to
activities in the relevant
regulated sector.
Who are these regulators? Why
do they have concurrent
jurisdiction?
The regulators given such
concurrent powers are OFTEL,
OFGAS and OFFER (now
OFGEM), OFWAT, ORR (the rail
regulator) and OFREG. The
intention is to combine these
regulators’ pre-existing powers
(which principally exist under
utilities legislation or through
licences) with the new
Competition Act powers to
ensure that the consumer
benefits. In any situation
potentially falling under both the
Act and a regulator’s existing
powers, that regulator will only
be able to use his sectoral powers
or its powers under the Act, not
both. It is up to the regulator to
decide on the best way of
proceeding.
So, what if a particular
agreement or practice potentially
falls within the jurisdiction of
both the DGFT and one or more
Conclusion
This has been no more than a
brief overview of the main points
in the Competition Act 1998.
Suffice to say though that with
the new threat of heavy fines on
companies and the possibility of
company directors or employees
being imprisoned or becoming
personally liable for fines,
companies, no matter their size,
should consider putting in place a
competition compliance
programme as soon as possible.
Bear in mind too that a number
of finalised or draft guidelines /
orders are expected to be issued
in the last weeks prior to 1 March
2000.
In the next article on this topic,
consideration will be given to the
application of the Competition
Act 1998 in the IT sector.
Richard J. Cockburn
Member of Shepherd &
Wedderburn’s Competition
and Regulation Group
E-mail: Richard.Cockburn@
shepwedd.co.uk
HUMAN RIGHTS
HUMAN RIGHTS
Teaching human rights in Bosnia
W
These problems, coupled with an
unwillingness to be moved from
traditional ways and ethnic biases
on the part of some of the more
established members of the
academic and judicial legal
fraternity, mean that there are
real problems with making the
Convention accessible to the
people whom it is there to
protect. Even where courts do
make orders to protect
individuals’ Convention rights,
there are problems with
representatives of public bodies
such as the police and court
‘
established that the key was
education. However, it quickly
became apparent that those most
willing to learn were the students
and young lawyers. They
appeared more willing and able to
put the whole situation into
context and realise the need to
move forward. The same cannot
be said for many of their older
professional colleagues, many of
whom are firmly entrenched in
ethnic bias.
As part of the Council of
Europe initiative, we travelled to
Mostar in late September to
‘
A group of Glasgow
University graduates led
by Professor Jim
Murdoch travelled to
Mostar in BosniaHerzegovina to teach a
group of law students
on the European
Convention on Human
Rights which has been
adopted as part of their
primary law. Two of the
group, JACQUELINE
ADAMS and ALAN
CASSELS, reflect on a
project in which they
learned more than
they taught
ITH the Scotland Act
and the Human Rights
Act creating varying
degrees of access to the
European Convention
on Human Rights for the first
time in Scotland’s domestic
courts, Scots lawyers must be
aware of the possibilities that this
entails. However, in some parts of
Europe the Convention is being
used as the basis for rebuilding
legal systems destroyed by years
of war.
The recent history of Bosnia
Herzegovina has been well
documented. The process of
rebuilding the country following
one of the most hate-ridden wars
of recent times is one of awesome
proportions. The Dayton Accord,
signed in 1995, integrated the
European Convention on Human
Rights into the Bosnian legal
system as the legal foundation
for the post-war era. The effect
was that the Convention took
primacy over domestic law, with
citizens being allowed access to a
specially formed Human Rights
chamber in Sarajevo to ensure
access to a fair hearing. The latter
point is fundamentally
important, given that the country
remains filled with fear and
suspicion between ethnic groups.
The importance of a tribunal
which is not only independent
but is seen to be independent
cannot be underestimated in such
an atmosphere.
It is not difficult to see the
potential for cases based on the
Convention where thousands of
people are still unable to return
safely to their homes, unfair
trials (within the meaning of
Article 6) are not unusual and
open religious worship is most
definitely not safe in some areas.
These are just some of the
human rights abuses that occur
on a daily basis.
The problems of integration of
the Convention into the domestic
legal system are myriad. The
judiciary were ill-equipped for
the integration, with lawyers and
judges knowing little or nothing
about the Convention itself.
Indeed, many offices, courts and
law schools did not even have
copies of the basic Convention,
never mind reported decisions.
Many offices, courts and
law schools did not even have copies of
the basic Convention
officials enforcing decisions
where this goes against the
dominant ethnic beliefs of the
area. Such are the ethnic divides
that are a major hangover from
the war.
In short, there are major
problems with access to
Convention rights. The Dayton
Accord is not worth the paper it
is written on if it is not accessible.
Non-governmental organisations
and the Council of Europe had to
come up with ways of making the
legal fraternity and the public in
general aware of the presence of
(and more importantly the need
for) the new legal order. They
teach a group of some 25
students on the Convention
rights most relevant to their
country’s problems. It was felt
that recent graduates with an
Honours level human rights
background would be a good
selection as tutors, as the
students would perhaps relate
better to a more informal
teaching style from a younger
group of tutors. It was felt that
this would offset some of the
tension that would inevitably
arise out of forcing the students
to meet people from across ethnic
lines and confront some of their
prejudices.
The course itself ran for six
days at Council of Europe
buildings in Mostar, which is a
divided city inhabited by
Muslims and Croats. Groups of
students from all three ethnic
groups in Bosnia attended. They
came from the Universities of
Banja Luka (Serb), Mostar (Croat
and Muslim) and Sarajevo
(Muslim). Many of our fears
were allayed on the first day
when the students appeared
willing to speak openly and in a
friendly way to those outwith
their own ethnic group.
Throughout the first four days
the students listened to lectures
on a host of topics, from the
prohibition on torture and the
right to life, through to freedom
of expression and property
rights. They listened intently,
despite the fact that the constant
translation they were required to
perform was obviously tiring for
them. The students were keen to
participate and with only a couple
of exceptions were open and
friendly with the tutors. On the
last day, the students took part in
a moot court competition, in
which some of the participants
showed an amazing
understanding of the concepts
they had been taught in the
previous few days.
At the end of the course,
students from the different areas
swapped addresses and telephone
numbers and promised to keep in
touch. Although there was a
serious legal background to the
course, the friendship that was
extended across ethnic lines was
perhaps the real success of the
week. The students showed
themselves to be willing to look
beyond the narrow horizons that
seem to restrict many of the
more established members of
Bosnia’s legal hierarchy. Some of
the stories told by the students
about their experiences during
the war were horrific and beyond
our comprehension. The way the
students had learned to get on
with their lives in light of some
of the things they had
experienced was truly amazing.
We returned to this country
with renewed perspective. The
academic and practical
complexities of coming to terms
with our new-found domestic
access to the Convention pales
into insignificance when one
considers the problems that are
encountered in places where
ethnic divides go well beyond
football. However, if today’s
students are anything to go by,
we can be confident that BosniaHerzegovina can be rebuilt with
the European Convention on
Human Rights playing a pivotal
role.
Jacqueline Adams and Alan
Cassels are second year trainees
with Balfour & Manson, Patricia
Orr and Ian Wallace who also
participated as tutors
graduated in 1999. They are at
present working for the Council
of Europe Human Rights
Directorate in Strasbourg on a
three-month placement
While images of ruined buildings may be the more familiar face
of Bosnia (left page), friendships flourished across ethnic lines
during the six day course to teach students about the rights
inscribed in the European Convention on Human Rights.
E M P L O Y M E N T L AW U P D AT E
Changes to maternity leave
In the first of a
two-part article on the
Employment Relations
Act 1999 SHONA SIMON
discusses the new
provisions governing
maternity leave. In a
forthcoming edition she
will look at parental
leave and time off for
dependants
Executive Summary
New provisions governing
maternity leave came into force
on 15th December 1999.
• provisions have effect only
where week of childbirth
begins on or after 30 April
2000
•ordinary maternity leave is now
18 weeks
• employee is not required to
notify the employer that she
intends to return to work at the
end of OML
• neither employer nor employee
has a right to extend additional
maternity leave
• employee needs only to have
accrued one year’s service to
qualify for additional maternity
leave
57A and 57B are inserted into the
1996 Act which provide a right to
time off to deal with emergencies
of one kind or another relating to
“dependants”.
By dint of section 9 of the 1999
Act Part III of Schedule 4 makes
extensive consequential
amendments to various pieces of
legislation.
Maternity leave and
related matters
The provisions in relation to
maternity leave have effect only
in relation to employees whose
expected week of childbirth
(“EWC”) begins on or after 30
April 2000.
The new provisions specify 3
types of maternity leave:
• Ordinary
• Compulsory
• Additional
Ordinary maternity
leave
The new s71 introduces the
concept of “ordinary maternity
leave” (“OML”). In essence, this is
the minimum period of maternity
leave to which all women are
entitled irrespective of length of
service. Previously, the minimum
period allowed was 14 weeks but,
as a result of the provisions of
new s71(3) ERA 1996 and
Regulation 7 OML is now 18
weeks for all women with an
EWC on or after 30 April 2000,
irrespective of length of service,
unless the end of the “compulsory
maternity leave” period would be
later in which case OML will end
when the compulsory leave period
ends. This provision, thankfully,
means that the period of OML is
the same length as the period of
time over which women are
entitled to Statutory Maternity
Pay (SMP).
Regulation 4 makes
entitlement to OML
dependent upon
satisfaction of certain
conditions:
At least 21 days before the date
on which the woman intends to
start her OML (or, if that is not
reasonably practicable, as soon as
reasonably practicable) she
notifies the employer:
a That she is pregnant (note, this
does not have to be notification
in writing, unlike
the
previous provisions in the 1996
Act)
b Of the EWC (by means of a
medical certificate if the
employer requests one) – same
as previous provisions
c Of the date on which her OML
is to commence (in writing if the
employer requests this) – same
as previous provisions.
Regulation 4(2) makes it clear
that OML cannot begin before the
start of the eleventh week before
the EWC (same as before) while
Regulation 6(1) (b) specifies that
OML will commence
automatically on the first day
after the beginning of the sixth
week before the EWC on which
the woman is absent wholly or
partly because of pregnancy
(same as before). In the event that
the woman gives birth before her
maternity leave is due to
commence it will start
automatically on the day she gives
birth (Reg. 6(2)).
The entitlement to OML is
dependent upon the employee
giving the employer (normally) at
least 21 days notice of the date of
commencement of her
OML(Regulation 4(1)). Given the
terms of Regulation 4 and the
commentary within the
consultation paper issued by the
Government prior to the draft
Regulations being issued, it can be
inferred that when a woman fails
to comply with the requirements
of Regulation 4 the maternity
leave will be delayed until 21 days
after the correct notifications have
been given. A woman will not
completely lose the right to OML
simply because she makes an
initial error in the notification
procedure. However, an employee
who has not notified her
employer of the date of
commencement of maternity
leave and who gives birth (most
probably because the baby is
premature) will forfeit the right
to OML unless she notifies the
employer as soon as reasonably
practicable that she has given
birth (Reg.4(4)). Similarly, an
employee whose OML is
triggered automatically as a result
of pregnancy related absence in
the six week period prior to the
EWC is not entitled to OML
unless she tells the employer that
she is absent for such a reason as
soon as reasonably practicable
(Reg.4(3)).
Entitlement to benefit of
terms and conditions
while on OML
New section 71(4) and (5) ERA
1996 make it clear that while she
is on OML a woman is entitled to
the benefit of the terms and
conditions of employment which
would have applied had she not
b e e n a b s e n t . “ Te r m s a n d
conditions” is stated to include
“matters connected with an
employee’s employment whether
or not they arise under her
contract” (clarification which has
been added – previous provisions
simply referred to terms and
conditions) but specifically
excludes “remuneration”.
While the previous provisions
gave no definition of
“remuneration” Regulation 9
now defines it as “only sums
payable to an employee by way of
wages or salary”. During the
Committee Stage the Minister of
State stated that “During
o r d i n a r y m a t e r n i t y l e a v e,
contractual holiday arrangements
accrue. A period of ordinary
maternity leave counts towards
the qualifying period for
statutory holidays under the
Working Time Regulations”.
A woman is also bound by any
obligations which arise under her
terms and conditions during
OML, except those which would
be inconsistent with the fact that
she is on maternity leave (section
71(4) (b) 1996 Act).
specifies that she will now have to
give her employer 21 days notice
of an early return. If she does not
do so the employer is entitled to
postpone her return to the date
which will ensure that he has
received 21 days notice although
this cannot be a date which is later
that the end of the OML period
(Reg. 11(2), (3)). If an employee
who is notified that her return
date is postponed under these
provisions decides to return
before the “postponed” return
day the employer is not obliged
to pay her. (Reg.11(4)).
New section 71 specifies that she
is entitled to return to the job in
which she was employed before
her absence on terms and
conditions no less favourable than
those which would have applied
had she not been absent, including
those relating to seniority and
pension rights. The employer is
not able to argue that it was “not
reasonably practicable” to allow
‘
Return from OML
As with the previous provisions
a woman is not required to notify
her employer that she intends to
return at the end of OML. The
legislation works on the basis that
employer and employee will
simply assume that she will be
back at the end of the OML.
However, as before, if she wishes
to return early from OML she
must give her employer notice of
this. In the previous provisions
the employee was required to give
the employer 7 days notice of the
early return. Regulation 11(1)
offence, punishable by a fine. It is
immaterial where the work is
done or what it involves.
The period of compulsory leave
is to fall within the OML period
(section 72(3)). If necessary, that
period can be extended but it is
difficult to envisage this being
required since the baby would
need to be more than five weeks
overdue before such an extension
would be necessary!
Additional maternity
leave
Under the previous provisions
women with two years service at
the eleventh week before the
EWC were entitled to the “right
to return” to work within the
period ending twenty nine weeks
after the beginning of the week in
which childbirth occurred. This
period will now be called
“additional maternity leave”
(AML) (new section 73 ERA
1996) and the period of service
She is entitled to return to the job in which
she was employed before her absence on
terms and conditions no less favourable
her to return to the same job and
to offer another suitable and
appropriate job.
Compulsory maternity
leave
By dint of new section 72 of the
1996 Act, read with Regulation 8,
a woman must take two weeks
“compulsory” maternity leave
commencing with the date of
birth of the child. This
requirement, which stems from
the Pregnant Workers Directive
(Directive 92/85/EEC), also
formed part of the previous
provisions, although it was rather
more obscure, being found only in
secondary legislation The new
provisions perhaps make it rather
more explicit that the onus is on
the employer not to allow the
woman “to work”. As with the
previous provisions an employer
who breaches this requirement
will be guilty of a criminal
leave unless either party to the
contract expressly ends it or it
expires”.
This proposal has been carried
through to the legislation.
Specifically, new section 73(1)
ERA 1996 states that “an
employee who satisfies prescribed
conditions may be absent from
work at any time during an
additional maternity leave
period”. From the reference to
“absent from work” rather than
the “right to return” it can,
perhaps, be implied that the
contract is to subsist during this
period. However, that fact is made
more explicit in section 73(4)
which states that an employee:
• is entitled, for such purposes and
to such extent as may be
prescribed, to the benefit of the
terms and conditions of
employment which would have
applied if she had not been
absent,
• is bound, for such purposes and
to such extent as may be
pr es c ri bed, by obli gat ions
arising under those terms and
conditions.
• is entitled to return from leave
to a job of a prescribed kind.
Subsection (5) specifies that
“terms and conditions of
employment” include matters
connected with the employee’s
employment whether contractual
or not but does not include
“remuneration”.
In the Regulations the
Government has significantly
restricted the contractual rights
and duties which will subsist
during the AML period.
Specifically Regulation 17 states
that an employee who takes
additional maternity leave or
parental leave will be entitled
during the leave period to the
benefit of her employer’s implied
obligation to her of trust and
confidence, and any terms and
conditions of her employment
relating to:
• notice of the termination of the
employment contract by her
employer;
• compensation in the event of
redundancy, or
• disciplinary or grievance
procedures.
By implication an employee will
not be entitled to other
employment benefits during
‘
T
HE “family friendly”
content of the Employment
Relations Act 1999 (ERA
1999) derives, in part, from
the fact that the
Government was obliged to
implement the EU Parental Leave
Directive (96/34/EC) by 15
December 1999 and is required to
implement the Part Time Work
Directive (97/81/EC) by 7 April
2000. However, the Act also
makes important changes to the
law governing maternity leave
and the return to work thereafter,
although much of the detail is to
be found in The Maternity and
Parental Leave etc Regulations
(S.I. 1999 No.3312) which came
into force on 15 December 1999.
One of the most noticeable
features of the 1999 Act, which
operates by inserting new sections
into or amending the provisions
of the Employment Rights Act
1996 (“ERA 1996”), is the amount
which it leaves to implementation
by means of Regulations. For
example, while the previous
provisions of the ERA 1996 dealt
specifically with redundancy and
dismissal for other reasons arising
during maternity leave, the new
provisions make these areas
subject to Regulations(new s.74
1996 Act). Regulations will also be
used henceforth to deal with
provisions about maternity
related notices, evidence to be
produced by the employee, the
consequences of failing to give
appropriate notice of impending
maternity leave or to comply with
other procedural requirements
and overlap between statutory
and contractual provisions
governing maternity or other
family related leave.
Specifically, section 7 ERA 1999
substitutes the provisions found
in Part I of Schedule 4 of the Act
for Part VIII Employment Rights
Act 1996.
New Part VIII of the
Employment Rights Act 1996
deals with the following subject
areas:
Maternity Leave (Sections 71 to
75 inclusive)
Parental Leave (Sections 76 to
80 inclusive)
In addition, section 8 of the 1999
Act inserts the provisions found
in Part II of Schedule 4 into the
1996 Act. In essence, new sections
necessary to qualify for the right
is reduced to one year (at the
beginning of the eleventh week
before the EWC) (Regulation 5).
The previous provisions made it
difficult to determine whether
women absent from work who
had the “right to return” had a
subsisting contract of
employment at all. In various
cases it has been suggested that a
“ghost” contract existed or that
the contract of employment had
been “suspended”.
In its Consultation paper the
Government stated:
“At the moment it is unclear
whether women on additional
maternity leave are employees for
legal purposes. Nor is it clear
which contractual benefits apply
while a woman is on maternity
leave. The Government proposes
that the contract of employment
should continue throughout
ordinary and additional maternity
these periods unless her contract,
expressly or by implication,
specifies that such rights will
continue during periods of AML
or parental leave.
The employee will be bound,
during such periods of leave, by
her implied obligation to her
employer of good faith and any
terms and conditions of her
employment relating to:
• notice of the termination of the
employment contract by her;
• the disclosure of confidential
information
• the acceptance of gifts or other
benefits
Commencement of AML
and notification
requirements
AML will commence on the day
after the last day of the OML
period (Regulation 6(3)). Under
the previous provisions a woman
who wished to exercise the right
to return to work was required to
notify her employer in writing
that she intended to exercise her
right to return prior to her
maternity leave commencing.
Under the new provisions there is
no requirement for the employee
to inform her employer before
her OML commences that she
intends to exercise her right to
AML. It will be presumed that she
intends to take her AML unless
she notifies the employer of an
intention to return early.
However, an employer is
entitled to write to an employee
no earlier that 21 days before the
end of her OML period, asking
her to notify him/her in writing
of:
• the date on which childbirth
occurred
• whether she intends to return to
work after the AML period
The employee is required to
respond within 21 days normally
(reasonably practicable extension
available) (Regulation 12).
The provisions of Regulations
19 and 20 (which, inter alia,
protect the employee against
detriment on the ground that she
took AML (Reg.19) and provide
for automatic unfair dismissal if
the reason for the dismissal is
connected to taking AML
(Reg.20)) will not apply to
employees who have failed to
COST OF TIME
comply with a written request
from their employer in terms of
Regulation 12. A “Regulation 12
letter” must warn the employee
of the above consequences of a
failure to respond and it must also
tell the employee how to calculate
when her AML period will end.
In addition in the Consultation
paper the Government proposed
that, when a woman fails to
respond to an employer’s request
for the date of childbirth and
confirmation that she is intending
to return to work after AML the
employer should be able to take
“appropriate disciplinary action”.
However, there is no mention of
this in the Regulations.
Under the previous provisions if
an employer wrote to an
employee asking her to confirm
whether she intended to return
and she failed to reply within 14
days she lost her statutory right
to return. This is no longer the
case.
Notification of early
return from AML
An employee who intends to
return before the end of her AML
must give her employer at least 21
days notice of her return, failing
which the employer is entitled to
delay the return until he/she has
had 21 days notice of it, although
he/she cannot postpone the
return to a date beyond the end of
the AML period (Regulation 11).
Can the return after AML
be postponed other than in
the above circumstances?
Under the previous provisions
an employer could postpone the
employee’s return after extended
maternity absence by up to four
weeks, subject to notifying her in
advance of the reasons for this. An
employee was entitled to
postpone her return for up to four
weeks for medical reasons. The
new provisions do not allow for
postponement on these grounds.
The Consultation paper states
that if an employee is ill the
“normal company rules on sick
leave will apply”.
Return after AML – to what?
Regulation 18 specifies that:
“An employee who takes
additional maternity leave. is
entitled to return from leave to
the job in which she was
employed before her absence or, if
it is not reasonably practicable for
the employer to permit her to
return to that job, to another job
which is both suitable for her and
appropriate for her to do in the
circumstances”.
This gives the employer a degree
of flexibility which is not
available on return from OML.
The right is to return on terms
and conditions as to remuneration
not less favourable than those
which would have been applicable
to her had she not been absent
from work at any time from the
commencement of OML. So far as
seniority, pension and similar
rights are concerned these should
be as they would have been had
her employment prior to her
AML been continuous with her
employment following her return
to work (subject to the
requirement of equal treatment in
relation to pensions in terms of
the Social Security Act 1989). In
relation to other terms and
conditions these should be no less
favourable than those which
would have applied had she not
been on AML.
What happens if
redundancy arises
during the OML or AML
periods?
Section 74 of the 1996 Act gives
the Secretary of State power to
make regulations to deal with
redundancy arising during either
of the maternity leave periods.
Regulation 10 applies where
during the OML or AML period
“it is not practicable by reason of
redundancy” for a woman’s
employer to continue to employ
her under her existing contract of
employment.
Regulation 10 specifies that
where there is a suitable available
vacancy, the employee is entitled
to be offered (before the end of
her employment under her
existing contract) alternative
employment with her employer
or his successor, or an associated
employer, under a new contract
which is such that:
• the work to be done under it is
of a kind which is both suitable
in relation to the employee and
appropriate for her to do in the
circumstances, and
• its provisions as to the capacity
and place in which she is to be
employed, and as to the other
terms and conditions of her
employment, are not
substantially less favourable to
her than if she had continued to
be employed under the previous
contract.
In essence these provisions will
have the same effect as those
which were previously found in
sections 71 and 88 ERA 1996
under which women on maternity
leave or returning to work had to
be offered alternative
employment where the employer
had a suitable available vacancy.
Right not to suffer
detriment for
pregnancy/maternity
reasons
Employees are protected against
subjection to a detriment or
dismissal for prescribed reasons
w h i c h i n c l u d e p r e g n a n c y,
maternity and maternity leave.
Since these provisions are also
relevant to parental leave they
will be discussed more fully later.
Contractual right to
OML/AML
Where an employee has
contractual maternity leave rights
which are better than the
statutory rights she is entitled to
the benefit of those (Regulation 21).
A “week’s pay” for the
purposes of the ERA 1996
If there is any need to calculate a
“week’s pay” for the purpose of
the 1996 Act by averaging
remuneration over a 12 week
period then any week during that
period in which an employee is
absent from work on OML or
AML or parental leave and is
receiving less than she would have
received if she had been at work is
to be discounted for the purpose
of the calculation (Regulation 22).
Shona Simon is a partner in
Mackay Simon WS,
employment law specialists
Does your firm spend more
on tea and coffee than IT?
F
OR the first time, the 1999
Cost of Time Survey asked
firms about their use of IT,
and how much they spent
on marketing and training.
The results make interesting
reading and prompt the question,
what should firms spend on these
areas in order to prosper and be
successful?
The 182 firms who took part in
this year’s survey comprised
nearly 1,600 solicitors – a quarter
of those in private practice – and
once again reflected a wide range
in profitability as illustrated in
the first of these articles that
appeared in the January edition of
the Journal.
This variation will be due to
many factors, in particular, the
quality of the work being
undertaken, the types of client
firms act for, the degree to which
they are able to specialise, the
skills of their partners and feeearners, and their willingness to
work hard.
Three additional factors which
are becoming increasingly
important are the degree to which
firms are making good use of IT,
the amount of time and money
spent on training and the amount
spent on marketing. Increasingly
firms are realising that the
amount they spend on these areas
is going to have an impact on the
amount of work they get, and
how efficiently they process it.
The chart indicates that overall
firms are investing relatively
little in IT. The median capital
spend on IT per profit-sharing
partner is £1,600, with a quarter
of firms spending under £400.
Traditionally, firms will have
used IT in their cash room, for
their secretaries and also some
fee-earners will have had screens
on their desks. These fee-earners
would generally have used them
In their second article outlining the findings of
the1999 Cost of Time Survey, John McCutcheon and
Andrew Otterburn assess firms spending levels on IT,
marketing and training
CAPITAL EXPENDITURE ON I.T. PER PROFIT-SHARING PARTNER
£
10,000
7,500
5,000
2,500
0
1
2-4
5-9
10+
All firms
Number of profit-sharing partners
25% point
Mid point
for accounts enquiries and
perhaps a diary. Few would have
used them for document
production, but that is changing.
A quarter of firms in the survey
claim that all their fee-earners
have PCs on their desks that they
actively use, and some of these
firms will be making very
effective use of IT in speeding up
document production and
reducing the cost of their work.
They will be using technology
for fee-earners to:
• Make corrections on screen;
• Enter information direct onto
forms;
• Produce documents after hours,
when their secretaries have left;
• Access reference material on CD
Rom
• Make file notes, perhaps using
voice recognition.
The amount you need to spend
on IT will very much depend on
what you are going to use it for.
To equip a fee-earner with a PC,
printer and Microsoft Office is
75% point
likely to cost around £1,500 and
to provide that fee-earner with
access to a comprehensive legal
support package will cost
anything from £400 to £4,000
depending on the one you choose.
Although these costs may sound
high, relative to the potential
benefits they can bring in terms
of reducing unit cost, they are
actually quite reasonable.
In addition to a generally low
spend on IT, the Survey indicates
that many firms are also spending
relatively little on training and
marketing. Overall, the median
spend on training was 0.3% of
total fee income, although 25% of
larger firms, with ten or more
partners, spent over 3/4 % on
training. The need for skilled
people, able to cope with change
and work effectively with
technology and new working
methods is recognised as essential
by many firms. If your bill, say,
£100,000 a year, to spend, say,
£500 on courses for yourself and
your secretary is probably not
unreasonable, suggesting firms
should be aiming for at least
0.5%.
Similarly, the median spend on
marketing was just 0.4% of total
fee income, with 25% of the
larger firms spending over
21/2%. Once again, what you
should spend on marketing will
very much depend on how
ambitious you are as a practice
and the type of work you do, but
2% is probably not unreasonable.
The problem with each of these
areas is that generally firms are
not investing sufficiently in the
long term development of their
firms – they are not investing in
their future. Some are, and the
likelihood is that they will reap
the benefits in the future, but
many are not – at least up until
now.
In December participating firms
received a free copy of the
complete report that this article is
based on, the 1999 Survey of
Legal Practices in Scotland. Other
firms can obtain a copy of the
report, which is priced at £80,
from Vivien McGregor on 0131
226 7411.
John McCutcheon and
Andrew Otterburn
John McCutcheon is Professor of
Actuarial Studies and Head of the
Department of Actuarial
Mathematics and Statistics at
Heriot-Watt University. He is a
member of the Society’s
Remuneration Committee and, since
1980, has conducted the annual
Expense of Time Survey.
Andrew Otterburn is a
management consultant and
contributor to Update courses on
practice management. His book on
the Profitability and Financial
Management of legal practices is
published by the Law Society in
London.
INTERVIEW
INTERVIEW
THE INTERVIEW
Andrew Normand
Crown Agent Andrew
Normand dismisses
suggestions that there is
a crisis in the fiscal
service due to stress and
excessive working hours.
Talking to ROGER
MACKENZIE he welcomes
the opportunity to put
the record straight and
explain what the service
is about
a “forward looking organisation”
and tells how foreign prosecutors
encountered at international
conferences frequently express
admiration for the system,
including its tight time limits.
The considerable effort devoted
to the preparation and training for
incorporation of the Convention
caused Professor Christopher Gane
to comment recently that “the
Crown are manifestly more at ease
with the Convention and its
related jurisprudence than
either the courts or the lawyers
representing the accused”, while
Lord Reed noted that “the benefits
of this investment of resources by
Crown Office have been felt by all
lawyers working in the Scottish
criminal courts”.
However, in recent months
specific allegations have centred on
reports of a disproportionately
high rate of fiscal solicitors on sick
leave caused by stress.
‘
with. Again Andrew Normand
refutes this.
“There are no departmental
marking quotas. Non-court
disposals, which includes a range of
disposals, not just no proceedings,
vary across the country, but overall
the rate is in the range of 30-40%.
The no pro rate average for the
service stands at around 15% of
criminal case reports.”
On these pages in September,
chairman of the Scottish Human
Rights Centre, John Scott, said that
“cases are often badly marked and
either not proceeded with or are
brought at the wrong level”.
“The main factor in marking
cases is sufficiency of evidence and
public interest. For cases at the
bottom end of the scale of
seriousness, where there is
sufficient evidence, fiscals require
to consider whether the case may
be dealt with appropriately in the
public interest by an alternative to
prosecution, rather than
prosecution through the courts. In
particular the use of a ‘fiscal fine’
requires to be considered.
“Fiscal fines are a statutory
alternative to prosecution which
may be offered for any offence
capable of being tried in the
District Court. Parliament has
therefore granted wide authority
for the use of this alternative to
prosecution. Any so-called
‘downgrading’ with regard to the
use of fiscal fines is in accordance
with the will of Parliament and not
the whim of prosecutors. In
practice, fiscal fines are used
carefully and responsibly in
accordance with the policy of the
Lord Advocate and departmental
guidance. That guidance sets out
various circumstances where fiscal
fines are not to be used – such as in
cases involving sexual or racial
overtones or where a
compensation order by a court
may be more appropriate.
“Bodies representing lawyers in
defence practice need to be careful
in their criticism of downgrading.
They do not have responsibility
for representing the public interest
and the public may find difficulty
in accepting them in the role of
guardians of the public interest.
The public could easily interpret
criticisms as self-interested and
‘
T
HE anecdotal evidence is
apparently irrefutable;
Scotland’s fiscal service is a
beleaguered and demoralised
organisation, bereft of
adequate funding and afflicted by
chronic levels of staff absenteeism
due to stress and excessive
working hours.
According to Crown Agent
Andrew Normand, popular
wisdom which reports a crisis in
the fiscal service “reflects a
distorted representation of the
department”, caused by “myth and
misinformation “.
“I welcome the opportunity to
refute some of the wilder claims
and suggestions about the way the
organisation is operating, to dispel
some myths and correct the
misinformation.”
He cites an unsupportive press
and a higher political profile since
devolution as being two possible
reasons for the plethora of articles
detailing allegations of problems in
the prosecution service.
“There are various interests
which may be served by talking up
supposed problems, reporting a
crisis which doesn’t exist. That’s
not to say we’re not under
pressure, but we are coping with it.
“Most public services funded by
taxpayers’ money are under
pressure, but so are many law
firms in private practice, including
many successful ones. The
statutory time limits for
prosecution in Scotland mean that
Scottish prosecutors always work
under pressure. The dedicated staff
across our offices are committed to
ensuring compliance with those
time limits – one reason for the
high regard the Scottish
prosecution service is held
internationally.
“1999/2000 is proving a very
demanding year due to three
major factors, namely the
incorporation of the European
Convention on Human Rights,
preparation for the Lockerbie trial
and the substantial rise in the
number of serious cases to be dealt
with. The Convention, for
example, was thoroughly prepared
for, but its impact was and is
unknown and hard to predict.”
Andrew Normand describes the
Crown Office and Fiscal Service as
Bodies representing
lawyers in defence
practice need to be
careful in their criticism
of downgrading
“It’s quite untrue to suggest that
a large number of PFs and deputes
are absent from work suffering
from stress. Legal staff sickness
absence rates are overall low and
there are few stress related
absences. Even those are not
necessarily work related, we know
of family or domestic causes in
some instances.
“There is no evidence that
sickness rates in the PF service are
higher than in comparable
organisations – or indeed the legal
profession more generally. We
monitor the number and cause of
staff absence and have a full time
welfare service, as well as other
initiatives such as “fair treatment
at work” policy and a new scheme
to compensate staff for late night
and weekend call-outs.”
Another newspaper report
alleged that fiscals were instructed
to work to a figure of 40% in
terms of cases not to be proceeded
business related.”
One of the more remarkable
recent stories suggested that fiscals
must achieve 60 % success in
order to have a chance of
promotion and therefore might be
tempted to drop cases which would
jeopardise their healthy win/loss
ratio.
“That caused particular
amusement in the office to which
the story was said to relate. There
is absolutely no truth in this
suggestion. It is not the objective
of the prosecutor in Scotland
simply to secure a conviction. It is
to ensure that a fair and accurate
account of the Crown case is
effectively put before the Court in
a frank and professional manner.
“Plea negotiation commonly
takes place, but the fiscal’s
objective is to achieve a just and
appropriate disposal of the case in
the public interest, having regard
to all the relevant circumstances,
which may include material
information provided by the
defence agent. The purpose is not –
and should not ever be – to
improve the fiscal’s personal tally
of convictions. There is no
individual “win/loss ratio” for
purposes of consideration of
promotion or any other reason.”
Suggestions have also been made
that fiscals are often inadequately
prepared for court, largely due to a
lack of working time.
“Fiscals normally receive case
papers in time to prepare
adequately for court. Occasionally,
and particularly in some of the
biggest offices, time to become
familiar with the papers may be
more limited. This should not
happen, though, with more
complex or difficult cases, which
should have been allocated to a
selected fiscal well ahead of the
trial
“I know that such systems do
operate in the big offices.
Obviously practice and familiarity
with cases vary depending on the
size of the office and number of
trial courts operating. Transfer of
cases between courts is not
uncommon in the bigger, busier
courts. Reasonable sheriffs will
normally allow some time for
deputes to read the papers. Fiscals
are professional, trained and
experienced in leading evidence
and advocacy in court. There are
many sharp, young brains in the
service now, well able to assimilate
and lead evidence quickly and
effectively.”
Nostalgic tales of easily
accessible fiscals, readily available
with an open door and hot coffee to
defence solicitors to chat about a
case, are often cited in harsh
comparison to today’s more
closeted breed.
“I am aware of long-standing
complaints about accessibility of
fiscals to defence lawyers. It is not
always clear to what extent they
reflect the practices and approach
to time-management of the
defence agents and to what extent
failures in fiscal offices. Early
discussion with the defence
solicitor is often very much in the
interests of the fiscal as well as the
defence solicitor. Many fiscals
complain that such discussions are
very often not early and too often
last minute. Fiscals are busy people
and require to make effective use
of their time. Most of them can no
longer accommodate solicitors
simply turning up at the office
without notice. In the bigger
offices attempts have been made to
improve things by setting up
appointment schemes, and by
other arrangements such as
additional fax machines, direct
lines for telephones and later in
the year e-mail access to all
offices.”
A widely perceived problem that
the service is under-funded is also
disputed by the Crown Agent.
“The 1998 Comprehensive
Spending Review set a more
realistic budget baseline and
reasonable basis for financial
planning after a period of
uncertainty. The extra £12 million
over three years has enabled the
department to run a series of
recruitment exercises to bring in
able young lawyers and some more
experienced practitioners. In the
past two years there have been
over 50 recruits to fill vacancies
and additional posts to meet
continuing pressures and, in
particular, European Convention
related pressures. We now have the
highest number of prosecutors
ever, but more lawyers are still
needed and we will be advertising
again shortly.
“Funding is generally adequate
for core business and has
supported ECHR work so far. We
will be assessing and explaining
future needs in forthcoming
Scottish Executive spending
review. Continuing pressures can
be expected as a consequence of the
European Convention and there
are other new pressures and
expectations to tackle crime, as
well as the need to invest in
computer and communications
systems. We wish to provide a
better service for the people we
deal with – victims, witnesses and
indeed our professional contacts.
“Efficiency and quality
improvements could be achieved if
funding is available for proposed
IT system changes. Important
progress has already been made in
that area with the integration of
criminal justice information
systems, and in that respect
Scotland is ahead of many other
countries.”
As solicitor to the Lord Advocate
in matters concerning prosecution
and deaths investigation, Andrew
Normand does not consider it
appropriate to discuss the
controversy about the “dual role”
of the Lord Advocate. He does,
however, draw attention to the
statutory protection of the
independence of the Lord Advocate
regarding prosecution and deaths
under Section 48 of the Scotland
Act and notes that the present
Lord Advocate has shown the same
determination to act
independently as his predecessors
for whom Andrew Normand has
worked.
Having had a close involvement
in the initial stages of the
Lockerbie investigation, as Deputy
Crown Agent, Andrew Normand
has a particular interest in the
forthcoming trial. “The Lockerbie
trial will display the Scottish legal
system very publicly to the world.
It is important to show that we are
able to mount such a trial and
present all the relevant evidence
before the court, and therefore the
public, including in particular the
families of those who died.
“The Scottish system is wellrespected internationally and there
is strong international support for
a Scottish trial. It’s important for
us to retain support and confidence
and to show the process to be fair
and effective and that the case is
properly and fully presented. That
aim is, of course, at the heart of our
approach to all our work, at
whatever level.”
S C O T T I S H PA R L I A M E N T
PROFESSIONAL BRIEFING
Evolving procedures of the parliament
Continuing our series of
articles by MSPs with a
legal background,
Scottish Conservative
leader DAVID McLETCHIE
examines the evolution
of Question Time and
Committees as a means
of ensuring the
accountability of the
Executive
‘
was also recommended which
would last for up to twenty
minutes out of the hour.
Members would also be given
more chance to pursue topics
with Ministers through
supplementary questions.
To further improve Question
Time, the Committee
recommended that the deadline
for questions for First Minister's
Question Time should be three
days before the event, rather
than eight days as for Question
Time. This should ensure that
questions are more topical and
therefore of greater interest. The
number of questions to the First
Minister selected by the
Presiding Officer could also be
increased from three to up to six.
The introduction of a specific
First Minister's Question Time is
intended to address the concerns
of members that they should
have the opportunity to question
Donald Dewar weekly as this is a
key element of accountability.
Committees are the means
by which individual MSPs can bring maximum
influence to bear on the Parliament
standing orders, in particular
those in relation to Question
Time.
Question Time
Question Time is a key event in
the parliamentary week and
attracts much public and media
interest. It did not get off to the
best of starts, but it did improve
as members became more
familiar and comfortable with
the format.
However, there was clearly a
need to adjust the proceedings in
order to improve Question Time
as a means of holding the
Executive to account. The
Procedures Committee therefore
recommended that the total time
allotted to questioning Ministers
should be increased from 45
minutes to one hour. A specific
First Minister's Question Time
Parliament are multi-functional.
The subject committees, which
cover the departments of the
Scottish Executive, have a
legislative role to process
legislation and also to initiate
legislation themselves; an
investigatory role to conduct
inquiries into subjects that they
believe warrant such action and
come up with reports
recommending policy action; and
a scrutiny role to examine the
work of the Executive
departments.
However, there is growing
concern that this committee
system will not be able to cope
with all the different tasks that it
is being asked to perform. A
recent example of this is the
attempt by the Executive to move
consideration of the National
Parks Bill from the Transport and
Environment Committee to the
Rural Affairs Committee. This is
to make room for the Executive's
highly contentious Transport Bill
to be discussed in the Transport
and Environment Committee.
This has serious implications
for the speed at which the
Parliament can process
legislation. The Justice and Home
Affairs Committee is by far the
busiest committee with the
Adults with Incapacity Bill,
Abolition of Feudal Tenure Bill,
Land Reform Bill and Tommy
Sheridan’s Member’s Bill to
abolish warrant sales to be
considered. In addition, further
Bills are expected on freedom of
information, family law and
domestic violence, which would
all have to go through the Justice
and Home Affairs Committee.
One of the main arguments in
favour of the Scottish Parliament
was the lack of legislative time
available at Westminster to
discuss Scottish legislation.
Unless something is done to
prevent it, there is a danger that a
logjam of legislation will build up
in the Scottish Parliament and
this will hinder reforms of the
Scottish legal system.
This may well require a review
and in the case of the Justice and
Home Affairs, it may require two
committees to cover the subject
area.
‘
T
HE procedures of the new
Scottish Parliament have
an important bearing on
the quality and the amount
of legislation that is passed
by the Parliament and on how it
is viewed by the public.
Since the Parliament first met
on 12th May it has operated
under a set of standing orders
conferred upon the Parliament
by a statutory instrument made
by the Secretary of State for
Scotland.
The Procedures Committee was
given the task of proposing a new
draft set of standing orders
before 6th May 2000. It
presented its proposals to the
Parliament six months early on
9th December 1999.
These proposals built on the
existing standing orders and
brought forward changes in those
areas in which members and
clerks had detected difficulties in
practice. It has recommended
significant amendments to the
The First Minister agreed that
this should be the case and it is
hoped that this will improve the
standing of the Parliament in the
eyes of the public.
Committees
Committees of the Scottish
Parliament play a much more
significant role than those at
Westminster and they are the
means by which individual
MSPs, outside bodies or the
public can bring maximum
influence to bear in the
Parliament.
At Westminster, different types
of committee perform different
functions. Standing Committees
process legislation and Select
Committees scrutinise the work
of Government departments and
conduct investigations.
The Committees of the Scottish
S C O T T I S H PA R L I A M E N T
The three parliaments
T
HE fun and festivities of
the holidays and the
dawning of the new
millennium are now a
distant memory. The silly
season stories have dissipated and
everyone is back to the nuts and
bolts of work in the three
Parliaments – each one, of course,
with its own sparkle and
occasional fireworks.
Brussels
The Establishment Directive is
at the forefront of many minds in
the run up to implementation on
the 14th March. The Brussels
Agenda and the Journal’s Europe
Section delve into the detail of
the European Parliament and the
other institutions.
Holyrood
The new process of legislating
in Scotland is already showing its
merits. The process is detailed
and thorough and is allowing
those who have views on an issue
to be heard by MSPs, including
the Society, which has promoted
amendments and commented on
a number of Scottish Executive
proposals which are now before
the Parliament.
The Adults with Incapacity
(Scotland) Bill is progressing
though the Stage 2 on its way to
the statute book. The Society has
put forward a number of
amendments aimed at improving
the clarity of the Bill. None of
these touch on the highly
charged and controversial debate
over Part 5 which related to
medical treatment. The Society’s
views are mainly about the
workability of the guardianship
provision.
The Society will closely
scrutinise further legislation
introduced by the Scottish
Executive including the
Standards in Scotland’s Schools
etc. Bill on school education,
corporal punishment and school
boards
The Abolition of Feudal Tenure
Bill has been through Stage 1 and
the Conveyancing Committee
will continue to follow its
progress through Parliament.
Website addresses
T
HE following list of firms’ addresses has been compiled from letterheads,
directories and surfing, so if it is erroneous in any way or if your site has
been omitted please let George Samson at the Society know, who will
endeavour to correct the error or omission and publish a correction. The
remaining addresses will be published in a forthcoming edition. If your site
is part of the Society’s database both the Blue Book (Butterworths) and the
Scottish Law Directory (T&T Clark) will be advised. The Society’s website
www.lawscot.org.uk will have a link to your site and if you care to check you will
find other useful links to Solicitors Property Centres etc.
The Society is adding e-mail addresses to the members’ database and will in due
course publish a directory. If you have an e-mail address please send it to George
Samson at [email protected]
Adams, Edinburgh: www.cybersurf.co.uk/adams/list.htm
Aitken Nairn, Edinburgh: www.aitkennairn.co.uk
Allingham & Co., Edinburgh: www.allingham.co.uk
JL Anderson, Cupar, Kinross & Glenrothes: www.jlanderson.co.uk
Anderson Strathern, Edinburgh, Haddinton & Currie:
www.andersonstrathern.co.uk
Antons, Buckie: www.antons-bck.co.uk
Archibald Campbell & Harley, Edinburgh:
www.propertywindow.com/archibaldcampbell.htm
Austins, Dalbeattie, Castle Douglas & Dumfries: www.austins-solicitors.co.uk
Alan J Baillie, Dundee: www.alan-j-baillie.co.uk
Gavin Bain & Co., Aberdeen: www.gavin-bain.co.uk
Bell & Scott, Edinburgh: www.bellscott.co.uk
Beltrami & Co., Glasgow: www.beltramiandco.com
Westminster
The Westminster legislative
programme is packed with
several Bills of interest and
relevance to Scottish solicitors
currently in progress.
The Child Support, Pensions
and Social Security Bill has
caused controversy since its
introduction to the House of
Commons in December 1999.
The Society is particularly
interested in the provision of
legal aid for child support
tribunals and Social Security
appeals, as well as the availability
of legal representation on civil
imprisonment issues. The view
that social security appeals
should be heard by a sheriff
(rather than a Justice of the Peace
whose role tends to be concerned
with criminal rather than civil
issues) has also been clearly
made.
The proportionality debate
which proposes disqualification
from driving as a possible
punishment for an unrelated
offence is of great concern to the
S o c i e t y. T h e L a w R e f o r m
Committee are concerned about
the legality of such a punishment
and the implications for civil
liberties.
Freedom of Information Bill
was considered in detail by the
Privacy Law Committee and the
Terrorism Bill was considered by
the Criminal Law Committee.
Amendments , which are mainly
technical, seek to ensure that the
Scottish aspects of these Bills are
not forgotten.
The Limited Liability
Partnerships Bill is one which
will allow solicitors to choose a
new way of running their
business and providing services
to clients. The Society will be
monitoring the progress of the
Bill and making representations
on its terms and implications
when appropriate.
All or as much as can fit into a
page will of course be reported
back to readers of the Journal in
the next Parliamentary Column,
alternatively those with any
specific interest can contact the
Society for more details.
Biggart Baillie, Glasgow & Edinburgh: www.biggartbaillie.co.uk
Bird Semple, Glasgow & Edinburgh: www.birdsemple.co.uk
Blackadder Reid Johnston, incorp. Carltons, Dundee, Carnoustie, Kirriemuir &
Forfar: www.brj.co.uk
Blair Cadell, Edinburgh: www.blaircad.co.uk
Borland Montgomery Keyden, Glasgow: www.bmklaw.demom.co.uk
Boyds, Glasgow & Edinburgh: www.boydslaw.com
Brodies, Edinburgh: www.brodies.co.uk
Brown & McRae, Fraserburgh & Turriff: www.brown-mcrae.co.uk
Burnside Kemp Fraser, Aberdeen: www.scoot.co.uk/burnsidekempfraser/
Buchanan Campbell, Glasgow: www.buchanancampbell.co.uk
Cairns Brown, Alexandria & Dumbarton: www.cairnsbrown.co.uk
Hector Cameron, Glasgow: www.camlaw.demon.co.uk
Cameron MacAulay, East Kilbride: www.cameronmacaulay.co.uk
Cameron McKenna (Scotland), Aberdeen: www.cmck.com
Commercial Law Practice, The, Aberdeen: www.theclp.co.uk
Connelly and Yeoman, Arbroath: www.surf.to/connelly~yeoman
Connons, Stonehaven: www.connons.co.uk
Conveyancing Direct, Glasgow: www.conveyancingdirect.co.uk
Craxton & Grant, Paisley: www.uklaw.net/cm
Digby Brown & Co., Glasgow, Edinburgh & Dundee: www.digbybrown.co.uk
Dowle Smith and Rutherford, Lerwick: www.orknet.co.uk/dsr/
Drever & Heddle, Kirkwall: www.orknet.co.uk
Drummond Miller, Edinburgh, Bathgate, Dalkeith, Kirkcaldy, Livingston,
Musselburgh & Dunfermline: www.drummond-miller.co.uk
Duthie Ward & Co., Aberdeen: www.duthieward.co.uk
Faulds Gibson & Kennedy, Glasgow: www.fauldsgibson.com
Ferguson & Will, Brechin: www.ferguson.force9.co.uk
FINANCE
FINANCE
Stamp duty soldiers on
‘
for some transactions, this may
lead to increases for others –
particularly in relation to land.
When one reads in the general
press about increased rates for
high value transactions, the
emphasis is always placed on
domestic properties. The £500,000
house may be very much more
common in the South East of
England than in Scotland, but it is
still a relative rarity. In fact, even
in other parts of the United
Kingdom, the increased rates of
stamp duty affect many more
commercial transactions; and the
yield from these high value
transfers is essentially a tax on
business. But this still does not
greatly lessen the attractions of
increasing the rates on such
transfers – the affected
constituency is for the most part a
combination of millionaire
homeowners, property developers
and property investors. It might be
difficult to put together a list less
likely to attract public sympathy,
unless it were possible to add
lawyers and journalists to the list.
Thus the prospects of increased
stamp duty for at least expensive
properties looks to be quite a
realistic one.
In this context, stamp duty
planning becomes more and more
relevant. A recent case might point
to some possibilities, although it is
very much subject to further
stages in the appeal process.
In Swallow Hotels Ltd v IRC
[2000] STC 45, the appellant was a
tenant under a 30 year lease,
granted in pursuance of an
agreement made on 26 September
1992. The lease granted an option
to the tenant to take a further
lease, this time for 999 years.
There were complex provisions
detailing when and how this
option could be exercised; and
providing a formula to calculate
the price to be paid on the exercise
of the option by the tenant.
The option was exercised on 26
September 1997; and the result
was that the landlord granted a
999 year lease to the tenant, for a
consideration in excess of £14
million. Following changes made
by Finance (No 2) Act 1997,
section 49 (passed shortly after the
current Government came into
office), the rate of duty on this
consideration would be 2%
(doubled from the previous rate of
‘
The current yield of
£4billion a year to the
Government in stamp
duty seems too
tempting a sum to
give up, but tinkering
at the edges seems
quite possible, says
ALAN BARR
(considerably) as a result of
measures already announced. For
a Government which wishes to
reduce the overall burden of
taxation (albeit slightly), but
which appears to prefer reductions
in areas which would attract more
headlines, this seems too tempting
a figure to give up. But tinkering
at the edges is by no means
impossible. Nor are further
increases in rates, especially for
more expensive transfers of land.
The current top rate is 3.5% for
transfers where the consideration
exceeds £500,000. While
historically this is quite high in
this country, the rate of equivalent
taxes in other countries can be
much heavier – and on property of
much lower value.
Abolition of stamp duty has been
touted as a possibility in the press
recently, given the likely surplus
available to the Government. The
most logical case for this remains
in relation to share transfers,
where other countries with
Possibility of the
revenue from
stamp duty
disappearing
altogether
competing exchanges have much
lower or non-existent rates.
Advances in technology make
trading in shares progressively
easier and less tied to any
geographical location, thus
increasing the possibility of the
revenue from stamp duty
disappearing altogether or going
elsewhere. The duty on such
transfers is only 0.5%, albeit on a
very substantial grand total. But
one distinct possibility is a further
reduction of this duty, to be
balanced elsewhere by increases in
the duty on those notoriously
immoveable assets, land and
buildings.
Other candidates for reduction
or exemption could be other forms
of business assets, to encourage
entrepreneurial activity. This,
among other ideas for reform, was
put forward by the Chartered
Institute of Taxation in 1999. But
if the duty does fall or disappear
1%), unless this transaction fell
within the transitional provisions.
These were in section 49(6) and
were in the form commonly used
for increases in stamp duty: “This
section shall apply to instruments
executed on or after 8th July 1997,
except where the instrument in
question was executed in
pursuance of a contract made on or
before 2nd July 1997”. (The short
gap between these dates is another
common feature of stamp duty
rate changes – 2nd July was the
date of the Budget, while 8th July
was the date of the necessary
resolution passed to give
temporary effect to the change.)
When the new lease was
presented for stamping, the Inland
Revenue made an adjudication
that the duty was payable at 2%.
In the appeal, the tenant argued
that the only contract between the
parties was the 1992 lease, clearly
entered into before 2nd July 1997.
The exercise of the option was not
a new contract. Any other
construction would involve
writing additional words into the
statute.
The Revenue argued that in
effect the exercise of the option
was a new contract and that it was
this contract which had brought
the new lease into existence. The
decision whether to exercise the
option was one to be taken by the
tenant. The Revenue accepted that
their construction would involve
limiting the application of the
transitional provisions to options
which would bind the purchaser.
The Vice-Chancellor said that
the question of options had not
been considered in the transitional
provisions, but they had to be
applied in any event. The solution
had to be found which would
produce the same result whether
or not it was the landlord or the
tenant who could exercise the
option.
Applying this view, he was clear
that although the 999 year lease
had been executed in pursuance of
the exercise of the option in
September 1997, it had also been
executed in pursuance of the
provisions contained in the 1992
lease. Both had to be regarded as
relevant, and if that was the case,
the 999 year lease fell within the
transitional exception.
The question was clearly one of
some difficulty and leave had been
granted to appeal to the Court of
Appeal. Thus if there are further
changes of rates in the next
Budget, it cannot be known
whether similar arrangements
completed before the relevant date
for such changes will succeed in
preserving the old rates. The
draftsman will be as aware of the
possibilities as anyone else and
may introduce provisions to deal
with options. But in suitable
transactions, it may well be worth
inserting option provisions, with a
long-term view to keeping the
benefit of lower rates for as long as
possible.
More simply, the approach of a
Budget indicates the desirability of
concluding at least contracts
before Budget date if at all
possible. (In the unlikely event of
a fall or abolition of stamp duty, it
will generally be possible to
unscramble arrangements should
this be necessary.) More generally,
a Budget focuses attention on the
need for stamp duty planning, if
‘
reduce a stamp duty charge which
would be properly due if a
different course of action were
adopted. Such avoidance is
perfectly legal. It is to be
distinguished from evasion, which
involves the deliberate refusal to
pay the correct stamp duty due.
Both types of stamp duty
planning share a common
characteristic (one which is really
true of all effective tax planning) –
plans are best carried out early,
especially where a Budget is
imminent. If matters get too
advanced in a transaction, or a
series of transactions, it may no
longer be possible to get a hand
down the stamp duty drain, to
prevent a heavy charge arising.
Careful stamp duty planning may
even make property more
attractive to an eventual
purchaser, who may be prepared to
share any savings with the well
prepared seller.
One of the biggest developments
in stamp duty planning in recent
An unexpected stamp duty
charge can emerge long after
a transaction has taken place
this is possible.
There are two sides to stamp
duty planning. One involves
taking care not to pay unnecessary
charges which might catch the
u n w a r y. T h i s c a n i n v o l v e
structuring transactions in
particular ways (especially where
there are a large number of parties
involved); avoiding full transfers
of property more often than is
absolutely necessary; and
restricting the amount of
consideration which may be
deemed to pass under a particular
instrument (where this can be
done legally). All too often, an
unexpected stamp duty charge can
emerge long after a transaction
has taken place, which may be too
late to take avoiding action.
The second side of stamp duty
planning is more ambitious. It too
involves careful structuring of
transactions, but in this case the
aim is actually to remove or
fore – for instance, because the
sale of shares is outwith the scope
of VAT, the VAT on ancillary costs
in making the acquisition will not
be recoverable. Although the
company should be as “clean” as
possible, it may have been in
existence for rather longer than a
purchaser would like. There may
well be other tax issues arising
from the transfer to the company,
especially if it is necessary to
extract the property at a later date.
Issues of company law may
require to be considered. But all of
these difficulties, and indeed
others, may very well be worth
facing if the alternative is a stamp
duty bill of 3.5% on a very large
price.
Despite the pitfalls, substantial
saving can result from the use of
SPVs. However, it is fully expected
that these will be the subject of
anti-avoidance legislation. This
has already led to suggestions that
it may be more appropriate to use
a company based outwith the
United Kingdom, but that in itself
can lead to other difficulties. It is
possible that any anti-avoidance
legislation may attempt to cover
that type of company as well, but
that illustrates the difficulties
facing the Government in drafting
e f f e c t i v e p r o v i s i o n s. M a n y
companies hold property –
perhaps a single property – for
reasons other than potential stamp
duty savings. It will be difficult to
define a “tainted” company with
any degree of precision. If past
record is anything to go by in
these matters, it is likely that any
anti-avoidance legislation may hit
rather more targets than was
intended; and this should certainly
be watched by anyone selling or
buying a company in the wake of
any changes.
All of this indicates the need to
look ahead for stamp duty and
other tax planning. Unfortunately,
the crystal ball is neither clear nor
wholly reliable; and thus
preparation always requires to be
balanced by reaction – even when
that means unscrambling some of
the preparation!
‘
A
S those working in the field
know, and those afflicted by
its produce learn all too
frequently, tax is a fastmoving area. Years of
investment and learning by tax
advisers can be reduced to the
condition of decaying crops by a
Chancellor’s whim, as the demise
of such gems as development land
tax and investment income
surcharge are replaced by bright
new fields of landfill tax and
insurance premium tax. But in the
mixed farm of tax revenues, some
perennials seem to be irresistible.
Stamp duty is among the best
examples.
The current governing
legislation dates from 1891,
although the origins of the tax lie
two centuries earlier than that. It
has not been consolidated since
1891, despite a wealth of changes
over the years – perhaps especially
in recent years. It does not feature
highly in the programme for tax
simplification. Most surprisingly
of all, perhaps, the death sentence
on the duty (at least for one of its
main targets) is already on the
statute book. Finance Act 1991,
section 110, under the bold
heading”Stamp duty abolished in
certain cases”, removes the charge
on virtually everything except
land, from the apocalyptically
named “abolition day”. But like
other apocalypses, if they can exist
in multiples, this one seems to be
slow in arriving. It is doubtful
whether it will ever be introduced,
although pressure grows as”tax
competition” increases in relation
to the transfer of shares in
particular.
Thus stamp duty soldiers on,
with a new(ish) sibling in the
shape of stamp duty reserve tax –
a duty with more similarities in
the name than anywhere else. It is
notoriously easy to collect, with
much of the administration passed
to taxpayers and especially their
advisers, long before the days of
self-assessment. While
enforcement of payment has never
been among its strong suits, the
basic need for third party
registrations of transfers and
securities assists greatly in the
incentive to pay the correct
amount of duty.
Its current yield is some
£4billion per annum; and this
figure is projected to rise
years has been the use of “SPVs”
in property transactions. The
initials stand for “Special Purpose
Vehicle” (or possibly “Single
Purpose Vehicle” or even “Single
Property Vehicle” – these are
distinctions without a difference).
Such a vehicle is a company whose
sole reason for existence is to hold
a property to be sold. The sale then
takes place not of the property, but
of all of the shares in the company
which holds it. As noted above,
sales of shares only attract stamp
duty at 0.5%, rather than at rates
of up to 3.5%.
The strategy is however
surrounded by pitfalls, which
require to be addressed from the
outset. The purchaser may not
want to buy a company rather
than a property. Buying a
company involves more complex
investigations and different
documentation. Other tax
considerations may come to the
Alan Barr is Director of the
Legal Practice Unit at
Edinburgh University and a
Consultant to Brodies WS.
EUROPE
Rights in three dimensions
T
EUROPE
The inter-relationship of Human Rights Law, Community Law and Scots Law
HE Society and the Faculty of Advocates
launched the second year of their
European law training course Schuman
2000: European Law in the new
Millennium with a seminar by Aidan
O’Neill QC on Human Rights. We are pleased
to be able to publish extracts from the seminar
which highlighted with the coming into force
of the Scotland Act and the Human Rights Act,
a new potential for conflict between the
requirements of Community Law and respect
for the directly effective provisions of the
European Convention on Human Rights.
The European Union and the ECHR
There is now no doubt that the central
Community institutions are legally bound to
respect fundamental rights in all their
activities. Article 6(2) (formerly Article F) of
the post Amsterdam Consolidated Treaty on
European Union provides that:
“the [European] Union shall respect
fundamental rights, as guaranteed by the
European Convention for the Protection of
Human Rights and Fundamental Freedoms
signed in Rome on 4 November 1950 and as
they result from the constitutional traditions
common to the Member States, as general
principles of Community law.”
Article 46(d) (formerly Article L) of the
European Union Treaty specifically gives the
Court of Justice jurisdiction to interpret and
apply this fundamental rights provision as
regards “action of the [central Community]
institutions” in the same way as the Court
already has jurisdiction over them under the
Treaty of Rome. Although this is a recent treaty
alteration and came into effect only on 1 May
1999, in practice it makes little if any difference
to how the Court of Justice operates. The Court
has claimed since the late 1960s the ability to
review the acts of the Community institutions
on fundamental rights grounds, even in the
absence of any Treaty provision to this effect.
The question as to the degree (if any) to
which the Court of Justice may properly act as
a human rights courts in relation to the
activities of the Member States remains a vexed
one however. There is no specific Treaty
provision giving the Court of Justice
jurisdiction in this regard and indeed Article
6(3) of the Treaty on European Union provides
that “the Union shall respect the national
identities of its Member States.” The Court of
Justice has, however, by a process of “creeping
pre-emption” apparently claimed to itself such
power of review of Member State action on the
basis that it is applying “general principles of
Community law”, among which it includes the
protection of human rights. From the mid1980s on the Court of Justice increasingly
began to use the language of fundamental
rights, such as freedom from discrimination on
grounds of sex or of nationality, in relation to
its assessment of the compatibility of Member
State action with the requirements of the
Treaty. In 1989 the Court of Justice held, in the
case of Wachauf v Germany (Case 5/88 [1989]
ECR 2609], that when Member States were
seeking to implement or enforce a Community
derived provision, their actions could be
subjected to the same fundamental rights
review as the Court of Justice applied to the
actions of the Community institutions. The
Court of Justice went on to hold in its 1991
Greek Television decision (Case C-260/89
[1991] ECR I-2925) that as soon as any national
administrative decision or indeed primary
legislation of the Member State sought to
derogate from Community law, the Member
State’s action was then “within the scope of
Community law” and fundamental rights
considerations could be used by the Court to
consider and test the validity of the legislative
and administrative actions of the Member
State.
Arguably the most significant development
in the case law of the Court of Justice in
relation to human rights protection within the
European Union was its 1996 opinion to the
effect that under the Treaties as drafted the
European Community lacks the legal
competence to be able to accede as a body to the
European Convention on Human Rights
(Opinion 2/94 [1996] ECR I-1759). The effect
of this judgment would seem to be that, as far
as the European Court of Justice is concerned
there are two final Human Rights courts in
Europe – one based in Luxembourg as regards
matters of Community law and another, based
in Strasbourg, as regards non Community law
matters. Are matters of Community law, then,
to be seen as immune from review by the
Strasbourg Court of Human Rights?
The European Court of Human
Rights and Community Law
Initially it appeared that the Strasbourg
institutions were content to accede to the
claims of the European Court of Justice to sole
jurisdiction in the matter of fundamental rights
review of Community law issues. However, the
latitude accorded by Strasbourg to the
institutions of the European Union may be
changing in the light of the definitive rejection
by the European Court of Justice of the
possibility of accession to the Council of
Europe by the European Union. Thus in
Cantoni v. France (15 November 1996 RJD
1996-V, 1614), for example, the Court of
Human Rights held that the fact that a national
legislative provision at issue is based almost
word for word on a Community directive did
not relieve the Member State from the
responsibility of ensuring that its law complied
with the Convention. And in Matthews v United
Kingdom (unreported decision of 18
February 1999 accessible
www.dhcour.coe.fr/hudooc) the United
Kingdom was held responsible by the European
Court of Human Rights for the denial of voting
rights to the European Parliament to British
citizens resident in Gibraltar contrary to those
individuals’ Convention rights under ECHR
Protocol 1 Article 3 to participate in free
elections notwithstanding that the extent of
voting rights to the European Parliament was a
matter for the European Union institutions
rather than for individual Member States.
This places the Member States in a difficult
position. They may be found by the Strasbourg
Court to have breached the requirements of the
Convention even where the matter at issue
comes within the sphere of Community law and
the Member State has no discretion or power to
do other than what is required of them under
Community law. It would appear that in such a
situation the Member State will be damned by
the Strasbourg court if it acts in accordance with
Community law but in breach of Convention
rights, but it will be damned by the
Luxembourg Court if it acts in breach of the
requirements of Community law.
The matter is particularly acute for members
of the Scottish Executive since Section 57(2) of
the Scotland Act 1998 provides that they have
“no power to make any subordinate legislation
or to do any other act, so far as the legislation is
incompatible with any of the Convention rights
or with Community law”. The legislative
competence of the Scottish Parliament is
similarly constrained under Section 29(2)(d) of
the Scotland Act.
The assumption behind these provisions
seems to have been that Community law and
the European Convention will never be in
conflict. The Convention is accorded “special
significance” by the Court of Justice as a
particular source for Community fundamental
rights (See Case C-299/95 Kremzow v Austria
[1997] ECR I-2629). There have, however,
already been instances of divergences between
the European Court of Justice and the European
Court of Human Rights on the interpretation
and application of rights derived from the
Convention. These include cases on the
privilege against self-incrimination under
article 6(1) ECHR, access to and confidentiality
of legal advice under articles 6(1) and 8, the
right to privacy under article 8, to free
expression under article 10 and privacy and
non-discrimination under articles 8 and 14.
It is not clear how divergences between the
two European Courts on the proper
interpretation of fundamental rights provisions
might be resolved as a matter of strict law as
there is no machinery for the formal
reconciliation of their competing judgments.
Are national courts bound by the
European Court of Justice on
questions of fundamental rights?
The answer to this question depends, really, on
whom one is asking and when one is asking it.
From the point of view of the European Court
of Justice, the answer is obvious. Within the
sphere of Community law, the decisions of the
European Court of Justice are supreme and
over-ride any contrary opinion or national
legislative provision. National courts thus have
an obligation to apply Community law in its
entirety to the cases before them, including, it
would seem, any judgments of the Court of
Justice in fundamental rights matters (See Case
11/70 Internationale Handelsgesellschaft
[1970] ECR 1125, at paragraph 3).
But under the European Convention, national
courts are regarded by the Strasbourg court as
organs or emanations of the Contracting States,
and therefore themselves bound, under Article
1 ECHR, to secure to everyone within their
jurisdiction the rights and freedoms set out in
the Convention and required, under Article 13
ECHR, to ensure that there exists an effective
remedy against what the European Court of
Human Rights consider to be violations of the
Convention rights and freedoms.
We have, then, the makings of a potential
constitutional crisis:
• Once the Human Rights Act comes fully into
force, national courts, and public authorities
generally, will be bound to uphold
Convention rights (section 6 of the Act);
• From the point of view of the European Court
of Human Rights, there will only be
compliance with the Convention if the courts
interpret and apply the Convention rights in
accordance with Strasbourg jurisprudence;
• In matters of Community law, however, the
European Court of Justice reigns supreme
• If, in a question falling within the field of
Community law, there is a conflict between
the European Court of Justice and the
European Court of Human Rights over the
interpretation and effect to be given to a
Convention right, the national court will be
potentially be acting in a manner contrary to
the Convention if it upholds the
interpretation of the Luxembourg court, and
in a manner contrary to Community law if it
upholds the interpretation of the Strasbourg
court.
• If the national court considers that Section
3(1) of the European Communities Act 1972
constrains it to act in a manner which it
considers to be incompatible with the
requirements of the directly effective
provisions of the Convention it may make a
declaration of incompatibility under and in
terms of Section 4 of the Human Rights Act
1998, either in respect that interpretative
provision of the 1972 Act or in relation to
specific provisions of secondary legislation,
for example national regulations
implementing Community Directives, made
under the 1972 Act. Even if any such a
declaration of incompatibility is made,
however, the offending provisions still remain
in full force and effect, the Convention rights
remain breached. Further, standing the
decisions in Factortame ([1990] ECR I-2433,
ECJ and [1991] 1 AC 603, HL) it would appear
to be beyond the powers of the Westminster
Parliament or Government unilaterally to
alter the offending provision, at least while
the UK remains a Member State of the
European Union.
• If the national court restrictively interprets
Section 3(1) of the European Communities
Act 1972 so as to enable it to decide questions
of Community law in accordance with its own
understanding of the requirements of the
Convention, it is arguably acting in breach of
Community law and may open up the UK
government to claims of Francovich damages
(Joined Cases C-6,9/90 [1991] ECR I-5357, ECJ).
• In any event, since under the Scotland Act,
neither Scottish Ministers (other than the
Lord Advocate) nor the Scottish Parliament
can be authorised by any particular
Westminster statutory provision to act in a
manner incompatible with the Convention
rights or with Community law, the devolved
administration and assembly will be bound
by potentially incompatible judgments on
fundamental rights of both the Luxembourg
Court of Justice and the Strasbourg Court of
Human Rights.
Thus, the domestic courts are impelled by the
logic of the new constitutional settlement to be
the final arbiters in any divergence on
fundamental rights issues as between the
European Court of Justice and the European
Court of Human Rights.
The Court of Justice has now been presented
with the opportunity to review its fundamental
rights jurisprudence as a result of a preliminary
reference from the First Division in Booker
Aquaculture Limited v The Scottish Ministers
(2000 SC 9, IH) a case in which a fish farming
concern seeks compensation for losses
resulting from the compulsory slaughter of
stock on the orders of Scottish Office
Agriculture, Environment and Fisheries
Department. It was agreed between the parties
that the matter fell within the field of
Community law in the sense that the
regulations under which the Department was
acting had been made in implementation of a
Community Directive. The interpretation of
these regulations and the directive was
therefore said to be subject to the general rules
of the Treaty and in particular to the general
principles of Community law, including the
fundamental rights enshrined in Community
law, among them a fundamental Community
and Convention law right to respect for
property. The dispute between the parties was
“as to whether, in determining compensation
arising out of the application of the national
measures implementing Community rules, the
Member State is acting within the scope of
Community law or within the area of its own
competence”. This Scottish case accordingly
raises matters of fundamental constitutional
importance for the whole of the European
Union. Its outcome is keenly awaited.
Schuman 2000:
European Law in
the new Millennium
Places are still available at the following
seminars:
22 February 2000 in Edinburgh
Intellectual Property
7 March 2000 in Edinburgh
Sex Discrimination
21 March 2000 in Edinburgh
Competition
4 April 2000 in Edinburgh
Business Enterprises
2 May 2000 in Edinburgh
Consumer Protection
Environment and planning
Personal injury
16 June 2000 in Edinburgh
The Schuman Lecture
Followed by a reception
For further details contact Sarah Fleming
at the Society.
IF you would like further information
or if you would like to subscribe to any
of the services provided by the Brussels
Office (Brussels Agenda, EU
Documentation or Enquiry Service) or
Guidance Notes which are all free of
charge, please contact us at:
The Law Societies’ Joint Brussels Office,
142-144 Avenue de Tervuren,
B-1150 Brussels, Belgium,
or DX 1065 BDE Belgium
Tel: 00-32-2-743 85 85
Fax: 00-32-2-743 85 86
and by e-mail:
June.O’[email protected]
[email protected]
[email protected]
Information is also available from the
Society in Edinburgh from Sarah Fleming.
Tel: 0131 476 8132
Fax: 0131 225 4243
RISK MANAGEMENT
I N F O R M AT I O N T E C H N O L O G Y
Managing environmental risks Stay ahead of the game
S
OLICITORS involved in a
range of types of commercial
and corporate transaction
need to be aware of the
contaminated land regime.
Their clients may be affected
whether their interest in the land
is as purchasers or sellers, lenders
or borrowers, trustees, receivers
etc.
The potential liability which
may arise is onerous and may
arise with retrospective effect.
The solicitor’s client may be
required to “remediate” the
contaminated land and that
obligation can arise even though
the contamination occurred prior
to the client’s acquisition of the
property.
The situation is further
complicated by the fact that it is
not always definite and
predictable which party or parties
will be pinned with this liability.
For instance, a property may have
been sold at a price which is
intended to reflect the fact that
the site is contaminated. In those
circumstances, while liability
would be expected to attach to the
purchaser rather than the seller,
liability could revert to the seller
if, for any reason, responsibilities
cannot be enforced against the
purchaser.
How are solicitors at risk?
The terms of engagement
agreed between solicitor and
client and the scope of the
solicitor’s instructions may say
otherwise, however it seems
likely that solicitors will have
responsibility for advising clients
on the potential liabilities
imposed by the contaminated
land regime. That means that
solicitors could be held liable:
• if they fail to alert their clients
to the implications of the regime
and the potential liabilities it
creates
• if they fail to make the enquiries
that are necessary to establish
liabilities that a purchaser client
may be assuming on acquisition;
a seller client may retain
notwithstanding disposal of the
property; a lender client may
assume in the event of calling up
a loan and enforcing a security; a
corporate client may be
ALISTAIR SIM considers the risks for
solicitors involved in commercial property and
corporate transactions where the contaminated
land regime applies
acquiring along with properties
in a company acquisition etc
• if they fail to protect the client’s
interests by including, deleting
or revising provisions in the
m i s s i v e s, l e a s e o r o t h e r
agreement regulating the terms
on which the client buys or
sells, leases or rents, or
otherwise transacts with the
property
How to control the risks?
There is some degree of
complexity about the application
of the regime. It is essential
therefore that everyone with
responsibility for advising on
commercial property and
corporate transactions has a
thorough working knowledge of
the regime itself and of the firm’s
risk control arrangements. Risk
control or risk management
arrangements might include
some or all of the following:
• Terms of engagement – ensure
that the extent of the firm’s
responsibility is properly
reflected in the terms of
engagement agreed with the
party you are representing
• In high value transactions, it
may be appropriate to seek to
agree a contractual limitation of
the firm’s liability
• Watch carefully the terms of
lenders’ instructions. If in any
doubt, clarify/qualify the terms
of your instructions and
qualify/limit the terms/scope of
your report to the lender
• Where other professional
advisers are involved, ensure
that it is clear what is the extent
of each adviser’s role and
responsibilities
•Controls over style and
proforma documents ensuring
that the styles and proformas in
use in the firm for transactions
which involve environmental
issues are kept up to date; and
that there are no rogue styles or
proformas in use that contain
inappropriate conditions,
warranties, indemnities etc
• Develop a checklist or set of
checklists for different
circumstances to help ensure
that all appropriate enquiries
are made, questions asked
and/or answered
• Devise checklists or transaction
plans and then diary the
relevant dates to help ensure
that these enquiries are dealt
with at the appropriate stage of
a transaction (usually prior to
conclusion of missives,
agreement etc)
• Take particular care in the
drafting / revisal of warranties,
indemnities and other relevant
clauses. It may be helpful to
develop a set of style clauses
(with explanatory
commentaries) which can be
adopted/adapted when drafting
or referred to when revising
agreements
• In corporate transactions, due
diligence would normally be
expected to include appropriate
enquiries regarding
environmental issues and again
check lists, whether
standardised or tailored to the
particular transaction should
flag up these enquiries
• It may be appropriate for clients
to be advised about the
availability of relevant
insurance arrangements
(Environmental Impairment
Liability insurance) and again
checklists should include
appropriate prompts. Insurance
to cover the risk of
contaminated land liabilities is a
not provided by standard
business insurance policies.
This is specialised cover which
will only be available if an
environmental audit is carried
out to the satisfaction of the
specialist insurers.
• In reviewing the terms of
environmental audit reports, it
is crucial to check the precise
terms of engagement of the
consultant who conducted the
audit, to be satisfied that your
client can rely on the
consultant’s report and that the
client will have rights arising
out of the report that are
capable of being enforced
against the consultant bearing
in mind any claim might arise
some years later. Another point
for your checklist.
Caveat
The contaminated land regime
creates issues of considerable
complexity for clients and
advisers involved in various
types of commercial property and
corporate transaction. The
comments above allude to these
complexities in only the most
superficial terms. The objective of
this article is not to address the
legal technicalities or their
potential implications.
The principal aim of the article
is to draw attention to the way in
which it may be practicable to
manage and minimise the many
risks for solicitors including the
risk of errors or omissions in
legal advice; drafting errors in
contractual and other documents;
or failure to protect the client’s
interests by obtaining
appropriate reports, warranties,
indemnities etc.
The approach which is being
advocated is the application of
various disciplines and systems
including checklists tailored to
the circumstances and
requirements of the particular
transaction and controls over
documentation. These are the
same disciplines and systems that
can help to minimise the risk of
errors and omissions in relation
to any type of client work.
The information in this page is (a)
intended to provide guidance on
matters of practical risk
management and not on issues of
law and (b) is necessarily of a
generalised nature. It is not specific
to any practice or to any individual
and should not be relied on as
stating the correct legal position.
Alistair Sim is Associate
Director in the Professional
Liabilities Division at
Marsh UK Limited
T
HERE are plenty of contenders
for the claim to have been there
first. One of them is Epoch
Software. On 30th April 1999
this company launched Desktop
Lawyer – claiming to be the UK’s first
Internet service offering cheap and
easy access to legal documents (at
that stage limited to uncontested
divorce and employment
agreements). Law firms quickly
followed. In November last year
Simmons & Simmons started
elexica.com, asserting to be the first
UK law firm to offer a free on-line
service, aimed primarily at in-house
lawyers and law students.
Simple
The principle is simple. At the
Desktop Lawyer website, clients
download files which are unlocked
after payment via a credit card. The
document is then customised and
sent by e-mail to a legal support
team, where a solicitor checks that
the documents meet the client’s
requirements. In Scotland too, the
amount of legal work on-line is
expanding. Last month, for example,
we reported a case study on Peddie
Smith Maloco who are undertaking
institutional conveyancing work
using modern information and
communication technology.
Different
The Internet is changing legal work
in different ways. For small firms it
may be that a partner or even
paralegal can log into the firm’s
computer network from a laptop or
PC at home, instead of going to the
office, to start or conduct matters.
Larger firms are completely changing
the way in which they interact with
clients. New software programs
enable them to give their clients
secure access to specific areas of the
firm’s computer system and use their
applications via the Internet, for
example, in order to inspect files, feed
As the amount of on-line work is growing fast,
BEN BRABER makes some suggestions for
staying one step ahead
information directly into the system
or process specific matters.
New business
While these developments improve
workflow efficiency, the main benefit
of
new
information
and
communication technology will be in
the opportunities it offers for
winning new business. New
technology tends to integrate all
aspects of a firm’s operations. From
registration of client contacts and
production of documents to keeping
accounts, analysing figures and
issuing fee notes, all work is
conducted by utilising different
modules of one computer system. At
the basis of this computer system lies
a powerful database. Instead of
having to work with different
databases, as in the past, all
information is stored in one
comprehensive database, including
valuable elements for winning new
business.
Learn
The database includes information
from work files as well as client
r e c o r d s. S o i t b e c o m e s v e r y
straightforward to learn more about
client requirements. This knowledge
will help lawyers to offer clients a
fully customised service, which can
be aimed exactly at their individual
needs and preferences. The analyses
of client data will also help in
formulating an approach to
prospective clients, specially those
with similar profiles, but
concentrating on existing clients
must be given priority. The reason for
this is that it is, in general, becoming
more difficult to maintain clients and
win new ones. This is partly caused
by growing competition and partly a
result of new legislation.
Data protection
A new data protection law which
comes into force next month will
make it no longer legally permissible
to collect personal data and approach
people without their explicit consent.
The new legislation also places a duty
on a data controller to inform a
person when data about this person
are collected, for example by means
of a data protection notice. The new
law, however, also provides legal
firms with an opportunity to win
extra business by advising clients on
the best practice. Furthermore,
lawyers can lead by example by
producing well-developed marketing
initiatives which comply with the
new rules.
Clients
In addition to the data protection
legislation, it is equally important to
take account of the growing
marketing literacy of clients. This
literacy, a result of the exposure to
more sophisticated marketing
techniques, makes a new approach to
clients necessary. During recent years
the legal profession has gone through
a revolution in its attitude on
marketing. Business development is
now the rule in most firms.
Marketing professionals have been
employed. Solicitors are trained to
get their message across. But in doing
all this, lawyers do not yet
differentiate themselves sufficiently.
In order to keep one step ahead, the
legal profession could learn from the
marketing efforts of their corporate
clients. In their reaction to new
legislation and changing consumer
behaviour, leading companies, such as
financial institutions, utilities and
large retailers, are introducing client
relations management as their main
marketing instrument.
Relations
With client relations management,
the traditional concepts of product,
price, place and promotion no longer
fulfil central roles. Everything
evolves around the relationship with
the client. Instead of seeking to
maximise profits per product or
service group, companies give
priority to managing the relations
with clients and attempt to enhance
the yield per client. Introduction of
client relations management is a
strategic change which requires a new
way of thinking, and the essence of
this approach is to realise that people
want to be valued. Clients will feel
valued when they are approached on
a one-to-one basis. They detest
receiving an unfocused general
mailshot in which a commercial
message is wrapped up as useful
information.
Unlimited
Modern technology enables you to
achieve this. Comprehensive database
systems, as described above, are now
available for legal firms, including
practice management systems for
small firms and more extensive
business operation systems for larger
p r a c t i c e s. I n c o n j u n c t i o n w i t h
innovative communication tools,
such as those created by digital
printing , this technology offers
unlimited possibilities to build and
strengthen a one-to-one relationship
with a large number of individuals at
the same time.
Ben Braber PhD is
communication consultant
and managing director of
BBMC Marketing
Communication Ltd.
REVIEW
REVIEW
Book Review
I will be very happy to receive reviews of books
which readers have enjoyed and feel would be
of interest to the profession. I would also
welcome suggestions on areas of the law which
we should tackle.
Alistair Bonnington, The Law School, The Stair
Building, University of Glasgow, G12 8QQ
Tel: 0141 338 2352 Fax: 0141 338 2973
E-mail: [email protected]
CHILD & FAMILY LAW
Elaine E. Sutherland
T&T Clark ISBN 0 567 00537 2 Price: £55
DOES the market
really need
another book on
child and family
law? The answer
seems to be that it’s going to get
one whether it wants one or not.
The market place is fairly
crowded now. In recent years we
have had Family Law by Edwards
and Grant, Parent and Child by
Norrie & Wilkinson (with a 2nd
edition now out) and with
Professor Thomson’s Family Law
now in its fourth edition. That’s
before we even get to older,
established works such as Clive’s
Husband and Wife. So what does
Elaine Sutherland have to offer?
The answer to this reviewer is a
s e n s e o f h u m o u r, k e e n
readability and an author
unafraid to take an informed
stance. What makes it
particularly interesting is her
drawing on other legal sources
such as some very interesting
American case law but also some
interesting and not at all well
known international conventions
and declarations. The book is also
highly topical. For example there
is even a section headed “the
Experiment with Curfews”.
The book provides a very
comprehensive survey of all
manner of family relationships,
including same sex relationships,
the elderly and the pre-natal.
Cohabiting couples are well
served by the treatment of the
legal position relating to them.
This reviewer was also very
impressed by the fairly concise
treatments of areas of the law to
which entire text books have been
devoted such as the area of
children’s hearing and child
protection.
The acid test one supposes for a
book of this kind is whether a
practising lawyer (to whom
reviews like this one are of course
addressed) would actually refer to
the book. For this reviewer there
is no answer to that question
other than a resounding
affirmative. On several occasions
this book was in fact very helpful
in relation to current cases I had
to deal with.
It was mentioned earlier that
Elaine Sutherland is not afraid to
nail her colours to the mast.
Where the law deserves criticism
(and it clearly does so in many
areas of child and family law) Ms
Sutherland is not afraid to say so
and to say why.
Some of the material in this
book actually made me laugh – no
mean feat. Legal text books are
after all not known for their
h u m o u r. F o r e x a m p l e M s
Sutherland notes wryly in the
section of her book dealing with
divorce that “only behaviour after
the marriage is relevant and the
discovery that one’s sweet, loving
spouse was, in fact a violent,
drunken, promiscuous axe
murderer before the marriage is
no ground for divorce”. In
another section she refers to
parents committing “the heinous
offence” of smoking. In one
American case she describes how
a wife beating but non smoking
father was preferred by the court
over his non smoking partner.
However, as medical knowledge
about the damaging effects of
smoking continue to grow, it
might have been preferable if Ms
Sutherland had given a little
more attention to this subject
than simply using the case as a
stick to beat the PC movement
with. If children are to have
rights, shouldn’t one of those
rights be the right to grow up in
unpolluted atmosphere that
d o e s n ’t i n v o l v e r i s k s o f
developing cancer due to passive
smoking? I also wonder if
children shouldn’t be allowed to
grow up with a parent who isn’t
disposed to committing slow
suicide.
It cannot have escaped the
attention of more astute readers
that reviewers often feel the need
to include at least one criticism in
their reviews. To paraphrase
Shakespeare, sweet are the uses
of cliché. Although the book does
come with an extremely good
index, which is not something in
my experience that can always be
taken for granted with legal text
books, in this case I was
somewhat put out to find no
index listing for “jurisdiction”
when I turned to this book to
consider a point that had arisen
in one of my own cases. I was
also disappointed to see that the
very important but sadly
unreported case of H v Kennedy
20th December 1992 (Inner
House) – which deals with the test
to be applied in considering
appeals against children’s hearing
decisions – is also missing from
the tables of cases. However, given
that this is after all a legal
textbook, its salient attraction for
me in any event is that it actually
did make one want to read it. That
is quite something.
Of particular interest to me
obviously is the section dealing
with parental rights and
responsibilities and in particular
the section dealing with those
matters comprising what is
broadly called “the welfare
principle”. It’s very helpful to
have this kind of material actually
set out and broken down into sub
headings. Some of the non
Scottish cases quoted also make
very interesting reading,
particularly in relation to the
question of the “tender years”
principle, presumption in favour
of the status quo and so on. Again
Ms Sutherland is not afraid to
state her own opinions about
some of the more (let’s be
charitable) unusual decisions
coming from the Scottish courts.
In general, I found this book
extremely readable, informative,
well laid out and as previously
noted, funny. That’s quite a
combination.
Alisdair Gordon
Penman, Gordon & Co
FINDING THE LAW: A HANDBOOK FOR SCOTS LAWYERS
James W. Colquhoun
T&T CLARK ISBN 0567 005 461 Price £18.50
IT is reasonable
to assume that
in the past few
years we have all
lost a few brain
cells, a portion of memory, and
large chunks of law. Maybe one
day we knew all the law we
needed to know, but they keep
changing it or re-defining it or
re-interpreting it until we are
entitled to have some doubts
about what the law actually is. Of
course, that should not be too
much of a problem for practising
lawyers because we can always
look it up – until we try to
remind ourselves where to look.
Can we be sure that the “latest”
book on e.g. Planning (if there is
such a thing) is not now five
editions behind the times? Was
there a “recent” statute about
this some time in the last ten
years – or last week?
As the great comedian Ken
Goodwin (remember him? –
probably not if I am right about
the brain cells etc) used to say:
“Daddy, Daddy where is the Taj
Mahal?”
“You had better ask your
mother son...she puts everything
away in this house.”
For those of us who have lost
the law, those of us who have
temporarily misplaced it, and
those of us who never knew
where it was in the first place,
this excellent book will be of
great practical assistance. The
stated objective is to provide
guidance on the main sources of
S c o t s l aw w i t h p a r t i c u l a r
emphasis on more recent
(electronic) information. The
author is Information Service
Manager of Brodies WS.
It is a reference book about
reference sources and resources.
If that sounds initially rather
unappetising, the prospective
reader should not be discouraged
because there is a veritable feast
awaiting. It could be regarded (if
you are that way inclined) as the
Good Restaurant Guide for legal
research, with information about
places to go, dishes to try and
detailed explanations of what to
expect on a good night. The more
trendy and upmarket
establishments are given an
enthusiastic press but the old
stalwarts feature too and there is
something for all tastes and
needs. There are many tips about
finding the more obscure eateries
and what to look for when you
get there. Even if you just want a
carry out, many of the menus are
provided.
The book gives full information
about all the main sources of
Scots, UK, and European law.
There are chapters on legal
t e x t b o o k s, l a w r e p o r t s –
published and unpublished,
statutes, statutory instruments,
official publications, and general
reference sources which lawyers
might profitably use. The author
explains where to find these, how
to check them and what other
means are available for
researching the law on particular
t o p i c s. S o m e v e r y b a s i c
explanation is given about the
significance of these various
sources, but that is not the main
point of the book which is
refreshingly practical. There is an
interesting chapter on the range
of legal journals which are now
available, and this includes a very
worthwhile section on
newspapers as a legal resource.
Throughout the book there is
constant reference to the
electronic means of research
which are now available to
supplement or replace the more
traditional sources. It would have
been interesting to know which
ones the author finds most
helpful and rewarding but
perhaps it is more in keeping
with the reference nature of the
book to leave this to the reader to
explore and decide.
The internet features
constantly, and indeed the book
sets out its stall very early with
the opening chapter devoted to
the various forms of electronic
research now available. Despite
the “Bah Humbug” response of
those who do not want to know,
do not want to understand, and
do not want to acknowledge its
benefits, this is undoubtedly the
biggest legal restaurant in the
world with the finest food and
the quickest service – once you
pay the modest entrance fee and
learn how to order. (If in doubt
your eight-year-old child could
be persuaded to help you). The
book contains numerous
internet addresses, websites etc
and leaves the reader with no
excuses for g o i n g h u n g r y. I t
h a s a comprehensive list of all
of the interesting electronic
legal sources and a sensible
and realistic assessment of
their advantages and
disadvantages.
There are hundreds of research
resources in this book which
lawyers should have at their
fingertips. If you have this book,
then you will be able to pretend
that they are!
Professor Charles Hennessy
CONVEYANCING
Gretton and Reid (2nd Edition)
GREENS ISBN 0414 013 085 PRICE £55
I recall preparing
a two hour
refresher lecture
on Conveyancing
for students
about to enter the Diploma. The
theory was that since they had
taken Conveyancing as a subject in
the LL.B degree in their third year
they would, by the time they
entered the Diploma in their fifth
year of studies, have forgotten
most of what they learned. I well
recall the salutary remark made by
my secretary. She handed me the
typewritten text of the two hour
lecture and she asked quizzically
why I didn’t just hand out this
curtailed version of conveyancing
at the beginning of the third year
class and then skip all the lectures.
It is not easy to define the
boundaries of conveyancing.
Conveyancing impinges of almost
every other legal subject and most
notably on property law. The late
Professor J.M. Halliday’s view of
Conveyancing was that it was the
law which related to anything
which was a writing and he
produced four volumes on the
subject to prove this point. Gretton
and Reid’s Conveyancing (now in
its 2nd Edition) approaches the
subject very much from a practical
angle. This is a book designed for
the Diploma in Legal Practice but,
as the authors note, it should also
be useful of practitioners. In my
view no legal firm in Scotland
should be without this volume. Its
approach is to deal with the subject
as it occurs in practice analysing
the bones of a normal domestic
conveyancing transaction stage by
stage and, as appropriate, adding
crucial references to the law as it
affects each stage. One of the great
benefits of this book is that the
footnotes contain many jumping
off points with references to other
more specialised works on
individual areas of the law so that if
a practising solicitor requires, say,
to look at a point regarding
servitudes more closely he or she
can move with ease from Chapter
13 through footnote 54 to other
works and cases. Similarly, if a
practitioner is concerned about a
defective survey then footnote 32
at paragraph 2.19 will refer him or
her to a number of recent cases.
When dealing with good and
marketable title the authors home
is on the important case of Duke of
Devonshire v. Fletcher (1874) I
I.R.1056). They then go on to
discuss whether a title based on a
decree of absence is unmarketable.
They do not however dispute the
matter at length. They give the
student and the practitioner what is
needed, namely a suggestion that
the standard imposed by that case
may be too high and a practical
solution if the title is to be
registered in the Land Register
namely that of convincing the
Keeper that the title is marketable.
All of this is done within the
compass of three paragraphs.
There are three chapters on
missives, two chapters on the
examination of the title and other
c h a p t e rs o n d i s p o s i t i o n s,
descriptions, execution of deeds and
in addition, specialist chapters on
d e s t i n a t i o n s, p a r t n e r s h i p s,
companies and insolvency. All of
these topics will be of interest to
the student and to every
practitioner but the genius of this
book and of the authors lies in the
way in which it and they have been
able to take a large and unwieldy
subject and boil it down to the
fundamental principles of law and
the main essentials of practice.
Robert Rennie
I N F O R M AT I O N
NOTIFICATIONS
APPLICATIONS FOR ADMISSION
JANUARY / FEBRUARY 2000
ENTRANCE CERTIFICATES ISSUED
DURING
DECEMBER 1999/JANUARY 2000
CAMPBELL, Scott,
LLB, DIPLP,
Margretta Cottage,
161 High Street, Lochee, Dundee
McRAE, Eilidh,
LLB(HONS), DIPLP,
5 Mentieth Crescent,
Kippen, Stirlingshire
CHAN, Stephanie,
LLB(HONS), DIPLP,
39 Buckingham Terrace, Edinburgh
McSHANE, Fintan Martin,
LLB(HONS), DIPLP,
6 Bush Crescent Wishaw
DAVIDSON, John,
BA, LLB, DIPLP,
“Ivybank House”,
22 Forrest Street, Airdrie
MORRIS, Louise Clare,
LLB(HONS), DIPLP,
44 Tuphall Road, Hamilton
DEANE, Margaret Catherine,
LLB(HONS), DIPLP,
38 Bath Street, Portobello, Edinburgh
HARRIS, John,
BA, LLB, DIPLP,
408 St Vincent Street,
Charing Cross, Glasgow
HASLETT, William Patrick,
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104 Clarence Drive,
Hyndland, Glasgow
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6 Caldwell Grove,
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2 Drumsheugh Gardens, Edinburgh
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68 Temple Park Crescent
Polwarth, Edinburgh
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34 Montague Street, Glasgow
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LLB(HONS), DIPLP,
16 Dean Street, Edinburgh
SCOTT, Michael Sydney William,
LLB(HONS), DIPLP,
Stronvaar, Stenness,
Stromness, Orkney
SIMPSON, Philip James Dalrymple,
LLB(HONS), LLM, DIPLP,
111 Montgomery Street, Edinburgh
ADAM, Deborah Mary,
LLB, DIPLP,
103 Granton Road, Edinburgh
ARMSTRONG, Donna,
BA, LLB, DIPLP,
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513 Gilmerton Road, Edinburgh
STEWART, Elizabeth Ann,
LLB(HONS), DIPLP,
3A Wellington Street, Dundee
COMISKEY, Louise Marion
LLB, DIPLP,
106 Muirskeith Road,
Merrylee, Glasgow
THOMSON, Lynsey,
LLB(HONS), DIPLP,
6 Huntly Court,
21 Dirleton Drive, Glasgow
GRAHAM, Lorne Campbell,
MA, LLB(HONS), DIPLP,
Leadmore Farmhouse,
Tullybelton, Nr Bankfoot, Perth.
TRAYNOR, Laurie Anne,
LLB(HONS), DIPLP,
65A Muirs, Kinross,
Perth & Kinross-shire
NICHOLSON, Joanna,
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SAMSON, Dawn,
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WHELAN, Nicholas,
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of the law society of scotland

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