of the law society of scotland

O F T H E L AW S O C I E T Y O F S C OT L A N D
VIEWPOINT
FROM THE EDITOR
President’s Report
Editor’s Introduction
PUBLISHERS
The Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh EH3 7YR
Telephone 0131 226 7411
Fax 0131 225 2934
President
Michael Scanlan
Vice-President
Alastair Thornton
Secretary
Douglas Mill
INGS crivvens, help ma boab, the
first six months of my Presidency
are gone in a nano-second but do
not think that the burden of high
office has caused a wobble in my
well known urbanity making me lapse
into Sunday Post speak. My opening
words are now to be found on the lips of
the most sophisticated Manhattanites
since my wee brother while making a
film was instructed by his director to find
an alternative to some sweary words for
the American market and dragged these
out from amongst vague memories of
Oor Wullie and Two-way Family
Favourites. So perhaps it is time for some
mid term navel gazing but absolutely,
definitely no matter how my popularity
dips, the walls of Drumsheugh will not
ring with childish laughter. The light of
my life is quite firm that despite the
many things we have in common with
Tony and Cherie (his good looks, her
taste in clothes) we are not doing the
baby thing. On reflection perhaps I’ll not
indulge in navel gazing. I am not sure I
can find my navel anymore. I know it is
down there somewhere, bobbing about
on the waves of new flesh acquired at
many Dinners and power Breakfasts but
I am not convinced it is worth gazing at.
J
also delight in new ones and found one of
the best of recent treasures at the
Dunfermline Faculty Dinner Dance
where the salmon came “napped” in its
sauce. What did this mean? Had it fallen
asleep rather than died. Would it appear
snoring gently, dribbling from slightly
parted lips. I took no chances. I stuck with
the roast beef.
Dunfermline offered other delights.
There was a splendid band which lured
me on to the floor to demonstrate my
jiving skills. I am not sure if the rest of
the guests stayed in their seats to watch
in stunned admiration or to avoid serious
injury from my more extravagant
flourishes. We pretty much had the floor
to ourselves and used most of it. We
were made very welcome by the Dean,
Caroline Flannigan, members and guests
and I’d have Crossford over Paris any
day.
earlier in the month in some trepidation.
Hamilton was my first public appearance
with Gerry Brown and the Fixed Fees
Legal Aid Roadshow and a very wellinformed, articulate audience gave me a
bit of a pasting. However, they seemed
mostly pleased to see me and we had a
well-informed, intelligent debate.
I was fortunate enough to be asked to
the Family Law Association Conference,
this time their 10th Anniversary do at St
Andrews. To get there I had to forego the
delights of a two-hour lecture on the
Accounts Rules at the Professional
Practice Management Course for new
partners being run by the Society at
Tulliallan. Hey ho, that’s the burdens of
office for you. The Family Lawyers are
among the best of the profession and
they certainly know how to party. They
were still going strong when I was
herded upstairs by my own wee Black
Bob.
Twin peaks
So Christmas and the Millennium
loom, offering us two opportunities to
eat and drink too much and fall out with
the in-laws, to watch your brother-inlaw’s youngest carefully rub her
chocolate biscuit into your pale beige
carpet and then feed the hairy remains to
Sleepy salmon
the dog who is sick in the corner and you
Together with the weight, I have gained Party people
don’t discover it until you step in it while
an extensive knowledge of menu-speak
I returned to the Hamilton Faculty taking down the Christmas decorations.
and take a simple pleasure
I wish you all a Happy
during the less stimulating
Christmas and Peaceful New
Splendid
band
lured
me
on
to
the
floor
to
after-dinner speeches in
Year.
demonstrate my jiving skills
seeking out old favourites like
“nestling in” or “bathed in”. I
Michael Scanlan
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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
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accepts no liability to any person
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© The Law Society of
Scotland, 1999
ISSN: 0458-8711
ORD Cullen’s judgment in the
landmark case of Starrs and
Chalmers v Ruxton, which has
effectively brought to an end
the use of temporary sheriffs
in Scotland, has sent shock waves
throughout the legal profession in
this country.
In an instant, it focused attention
on the issues of independence and
employment status which for many,
many years have deeply troubled the
temporary sheriffs upon whom the
system has depended at an
increasingly alarming level since the
early 1980s.
The depth of the problem which
now has to be faced can be gauged by
even the most cursory look at the
statistics. In 1980 there were 26
temporary sheriffs supporting the
system, stepping in - in the main - to
assist when a sheriff had died, was ill
or on holiday. By 1988 the number
was around 50 and by 1995, it had
soared to 120. The zenith was reached
when the figure hit 134. In the year
to 31st October 1999, temporary
sheriffs sat on 6,300 days in Scotland,
a figure which represents the case
L
load of 30 full- time sheriffs.
Now, however, the temporary
sheriff has to go and the court system
is faced with yet another crisis which
it needs under its present overload
like the proverbial hole in the head.
How will our system cope? Further
chaos was averted when three appeal
judges rejected a challenge which
argued that the temporary sheriff
was not a “validly constituted court”,
a challenge which would have wiped
out all decisions made by temporary
sheriffs since their arrival in the
1970s.
Foundation awards
THE Clark Foundation for Legal
Education, which was formed in
1991, has awarded £28,660 to a
cross section of Scots lawyers
and students of Scots law, to
contribute to the development of
the Scottish legal system.
The ceremony took place in the
Edinburgh office of Tods
Murray. John Fulton of Tods
Murray, who is secretary and a
trustee to the Clark Foundation,
said: “It’s crucial those in law
continue their development and
we particularly support the
younger members of the
profession as they seek to
expand their knowledge. One
award of particular topical
interest has gone to a 24-yearold who intends to undertake a
part-time PhD to study the
political/legal
relationship
between Scotland and England
and the effect of devolution.”
The presentation was made by
Lord Johnston in the presence of
the other trustees, Kenneth
Pritchard, Tom Drysdale and
John Fulton.
But the knock-on effect of the
abolition of temporary sheriffs for
civil as well as criminal cases could
well result in a disturbing backlog
developing as cases are shelved due to
a shortfall of sheriffs to hear them.
In this issue, Jamie Gilmour, an
Edinburgh lawyer and temporary
sheriff since 1988, takes a hard look at
the crisis and offers some direction to
a Scottish Executive which must act,
and act quickly, if this worrying state
of affairs is not to bring the system to
breaking point.
On another note, 1999 has been a
year of great change for the
profession. I hope that your Journal
has reflected some of the issues which
have been uppermost in your minds.
The pace of change will be no less
speedy in 2000. May I take this
opportunity to wish all readers of The
Journal a very happy Christmas and a
prosperous New Year.
Discipline vacancy
A VACANCY has arisen for a
solicitor member of the
independent Scottish Solicitors’
D i s c i p l i n e Tr i b u n a l . T h e
appointment is at the discretion of
the Lord President to whom, in
terms of the Tribunal Rules, the
Society makes nominations. Any
solicitor interested in obtaining
details of the commitment
involved and in serving should
make their position known to:
Douglas R Mill
The Secretary
Law Society of Scotland
26 Drumsheugh Gardens (DX ED1)
Edinburgh EH3 7YR
Inheritance tax – new forms delayed
FURTHER to an article in the June issue of the Journal in
relation to the redesign of the Inland Revenue Accounts
for inheritance tax, the new forms have since been
piloted at a number of presentations in Aberdeen,
Glasgow, Edinburgh and Dundee where it was
suggested the forms would be launched in February
2000.
The results of the pilot have not enabled the Inland
Revenue to make a realistic assessment of the impact
the new forms might have in Scotland and as a result of
this and representations by the Society and other
professional bodies, the launch of the new forms has
been postponed to allow the pilot to be extended to see
where there is room for further improvement.
‘
NEWS
In-House AGM
THE In-House Lawyers’ Group AGM
took place on 9th November.
Chairman Janet Hood reported on a
number of issues which have
exercised the Committee in the
course of this year.
She told delegates about the
benefit of membership of the Legal
Defence Union: “I’d like to take this
opportunity to remind you that
membership of the LDU is open to all
employed solicitors. A special rate for
employed solicitors of £60.00 per
annum is payable and, for the first
time this year, can be paid by way of
instalments. I commend membership
to you . I have not been happy with
the lack of support our membership
has received from more traditional
union sources. Given that some
members’ employers are refusing to
pay for Practising Certificates, you do
not have to look far to see
circumstances in which the LDU
advice can be of help.”
In his address to the conference, the
Vice President Mr. Alastair Thornton
reminded the Group of the
opportunities provided by Alternative
Dispute Resolution. He said there are
many instances where the work of
the In-House Lawyer can be made
easier by the use of mediation.
If you think that you have a
problem which could be resolved by
mediation then you should contact
Linsey Lewin at the Law Society to
discuss the available options
Janet Hood also advised that Iona
Ritchie has become the In House
Lawyers Group secretary and
thanked Lorna Davies for serving so
marvellously in that role for the last
18 months.
Authors wanted
THE Society has a joint books
agreement with the publishers
Butterworths, the express
purpose of which is “to ensure
that there continues to be made
available to the Society’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:
A l a n G r i e rs o n , E d i t o r i a l
Manager (Scotland),
Butterworths, 4 Hill Street,
Edinburgh EH2 3JZ or DX ED
211 or e-mail Alan at
a l a n . g r i e r s o n @
butterworths.co.uk
NEWS
Conference first
for Inverness
OLLOWING on the success of the 50th
Anniversary Conference, Inverness will
host the Society’s first conference of the
new millennium. The event begins with
the AGM on Friday April 7 and is
followed by an impressive business programme
on Saturday 8 April, highlights of which include
talks by inventor of the wind-up radio, Trevor
Bayliss, and the welcome return of Mark
Powers of Atticus, who will advise delegates on
“controlling your workload”.
Eden Court Theatre on the banks of the River
Ness is the venue for all the conference sessions.
It is the main centre in the Highlands not just
for conferences but a wide range of events,
including opera, ballet, drama, concerts, films,
family shows and art exhibitions.
The AGM will be held at 2pm on the Friday to
allow members time to travel. A buffet lunch
will be available in the Eden Court from 12.30
pm. Members needn’t book for the AGM, which
will break from tradition by giving more time
over for debate from the floor on issues
affecting day to day business.
Management and motivation are the main
themes of the Saturday seminars which will
consist of a mix of lectures and workshops.
Delegates attending for a full day will be able to
claim between 5 and 6.5 CPD hours, depending
on the sessions attended.
The day begins with Trevor Bayliss whose
invention of a radio which can run on solar
power has earned him the OBE and numerous
honours from British universities. He will
address the conference on “The Concept of
Personal Power”.
Other sessions include Malcolm Mackay on
“Lawyers Managing Change” and Gerry
Sinclair and Graham Walker advising on the
demands and challenges of the information age
as well as further tips.
In addition to coaching by Mark Powers,
workshops are planned on “the time trap”, with
Ailie MacPherson, a senior consultant with
Eglinton management, and Alan Newton from
F
Scott Oswald will offer a financial health check.
Tours are also available for accompanying
guests, including a trip to Cromarty which takes
in the award-winning museum courthouse and
a sail with Jacobite Cruises taking guests to the
lair of the Loch Ness Monster.
Alternatively, guests can combine the
solemnity of a trip to the historical site of the
Culloden Battlefield with shopping at the
Brodie Country Fayre or for the more active
there’s a morning of horse and pony riding at
the Highland Riding Centre in Drumnadrochit.
A free crèche staffed by fully qualified
personnel will be available for the under 5s and
for older children there is a programme
including football coaching and a visit to the
local Aquadome.
Social events include the black tie conference
dinner on the stage of the Eden Court Theatre
on the Friday evening followed by a ceilidh in a
marquee in the grounds of Doch Four House.
For golfers, the Royal Bank of Scotland Quaich
will take place on the morning of Sunday April
9, hopefully at the Culcabock Golf Course.
Society President Michael Scanlan said: “One
of the perks of being the President is that I get
to choose where my conference will be and I
have chosen a venue which is accessible by rail
and road and offers a wide range of affordable
accommodation for all, particularly the younger
members of the profession.
“The business programme is largely focused
on how to run a successful practice and is aimed
at everyone - young and old, we can always
learn something new. I think I would have
attended this one myself fifteen years ago when
I still, just, felt within the modern definition of
young. I could have afforded it, it would have
been accessible and in a beautiful part of
Scotland. The business programme in those
happy days before CPD would have been an
agreeable diversion.
“So I look forward to seeing you all at
Inverness in April 2000. Bring the weans - let’s
have a ceilidh.”
New improved
website goes live
HE Law Society of
Scotland has, this month,
updated its website
http://www. lawscot. co.uk
Over the last few months,
t h e S o c i e t y ’s M a r k e t i n g
Committee who handle the
website have been working
alongside website designers to
create a new site with updated
visuals, a greater degree of
interactivity, a wide selection of
publications, and many more
useful links to other legal sites.
From the solicitors’ point of
view, the site should prove even
more useful than before.
Building on the strengths of the
existing site, the new website is
now more interactive, with many
more links to other useful bodies,
including the Scottish Courts
T
Family Law Association
Committee 2000
OFFICE BEARERS
Honorary President:
Sheriff Brian Kearney, Glasgow
Chair: Shona Smith, Balfour and
Manson, Edinburgh
Vice Chair:
Lynne Di Biasio, Aitkens, Livingston
Secretary: Angela Alexander, Balfour
and Manson, Edinburgh
Treasurer:
Ron Hastings, Hastings & Co, Kelso
COMMITTEE MEMBERS
Elaine Adams,
Allan Findlay & Co, Glasgow
Julian Aitken, Aitkens, Livingston
Tom Ballantyne,
Mowat Dean & Co, Edinburgh
Scott Cochrane, Brodies, Edinburgh
Jo Edwardson, Brodies, Edinburgh
Linda George, J & W A Dykes, Hamilton
Lynn Mulcahy, Stronachs, Aberdeen
Carolyn McBride,
Quinn Martin & Langan, Glasgow
Elizabeth McFarlane,
Anne Hall Dick & Co, Glasgow
Carole Sheridan,
Sheridan McDermott & Co, Glasgow
John Stott,
Wilsone & Duffus, Aberdeen
Shona Templeton,
Penman Gordon & Co, Kirkintilloch
Steven Wright, Philpott Platt Niblett &
Wright, Clydebank
Administration’s Rolls of Court.
As well as the usual databases
where you can find any solicitor
in Scotland, with e-mail links to
many of them (please contact the
Society if you have an e-mail link
which does not appear at your
own entry), you can also down
load many of the Society’s
publications, including The
Journal. The site has been
overhauled to make getting
around easier, with a wide variety
of shortcuts and links, allowing
for speedier retrieval of
information.
Members of the general public
and students of law can access,
amongst other areas, an
expanded detailed history of
Scots law and how the courts are
structured, information on
famous Scottish lawyers, living
and deceased (feel free to make
suggestions for additions to this
section), and Dial-a-Law scripts,
as well as being able to download
general public leaflets.
Neil Ross, Convener of the
Marketing Committee, said: “We
are all aware of the rapid increase
in access to and familiarity with
the Internet, both for ourselves
and for our clients. We have been
working hard to ensure that the
website is keeping up with trends
and changes and feel confident
that we have developed an eyecatching, useful and interesting
s i t e . We w o u l d e n c o u r a g e
solicitors to visit the site and
make use of its services, in
particular the Solicitors’ Forum,
which we believe, if fully utilised,
could become an invaluable tool
for exchanging ideas and
information amongst practising
solicitors.”
SLAB report welcomed
HE Society has welcomed the
Scottish Legal Aid Board report
which was published last month,
but they have warned that it does
not reflect the impact of fixed
payments which are now being used for
payment of summary criminal legal aid
trials. The impact of that policy won’t be
felt until next year’s report.
The Board announced that payments
dropped for the first time in ten years by
almost 5% to £138 million, with
criminal legal aid accounting for more
than half the payments at £75.85
million.
Michael Scanlan, President of the
Society, said: “This year’s report bears
out what the Society has been saying for
some time: the people of Scotland have
some of the best provision of legal aid
services provided by solicitors in the
world, supported by one of the broadest
legal aid schemes in Europe.
“There is always room for
improvement and the Society will not
cease to propose change to a system
whose overall aim is to provide access to
justice for those who cannot afford to
pay for it.
“Over the past five years there has
been substantial change in the delivery
of legal aid services in Scotland including
T
new procedures such as Intermediate
Diets, which were promoted by the
Society. While not always agreeing with
policies introduced by either the
Government or SLAB, the Society and
its members share the ideal of an
efficient and effective system, which
operates in the interests of justice for all.
“The Society has worked tirelessly
with SLAB and the Scottish Executive in
the Tripartite Group to address issues
which have arisen over the past financial
year, including fixed payments for
summary criminal legal aid and the
Public Defence Solicitors’ Office. That
work will continue.
“Scottish solicitors provide quality
legal assistance to Scottish people in
need. That is an essential element of the
Scottish social system of which we can
be proud”.
Gerry Brown, Convener of the Legal
Aid Committee, said: “Scottish solicitors
who provide legal aid have had a difficult
year. SLAB acknowledge that problems
in administration led to late payments of
solicitors’ accounts. SLAB have now
brought their payment practice into line
with Government guidelines by
promising to pay accounts due within 30
days. Practitioners are pleased to see this
improvement.
“Under the Convention on Human
Rights, everyone charged with a criminal
offence has the right to free legal
assistance if they cannot pay for it and it
is needed in the interests of justice. That
is what legal aid is about and what
practitioners like me provide.
“I hope that in future human rights
cases and devolution issues will be
specifically highlighted by SLAB in their
report.”
“Any ‘savings’ in the legal aid budget
should be reinvested in providing legal
aid to the Scottish public.”
Turnaround times
The current average turnaround times
in working days from the Registers of
Scotland are as follows:
Sasine Writs: 47 working days with a
maximum of 70 days for the latest
county.
Unattached Dealings with Whole*:
47 working days with a maximum of
57days 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
I N F O R M AT I O N T E C H N O L O G Y
Society
welcomes
new solicitors
Microsoft users should not panic
DESPITE heavy snow on the roads,
over 80 trainees travelled to
Parliament House to be admitted as
solicitors by the Law Society of
Scotland on Friday 4 December. The
guest speaker was Justice Minister
Jim Wallace who welcomed the new
solicitors and spoke on the changing
face of Scotland’s judiciary.
He said: “The next few weeks will
see the most extensive and farreaching appointments to the
Scottish judiciary in living memory.
This will change the face of the
judiciary in Scotland and I hope this
opportunity will be used to increase
the diversity of our judges and
sheriffs.”
He noted that 56% of new
entrants to the profession were
women and expressed the hope that
the new solicitors would find
themselves in more courtrooms
presided over by women.
President Michael Scanlan also
welcomed those present and spoke
of his own legal career and the
changing face of the legal
profession.
Trainees who were scheduled to
attend the ceremony but were
unable to go because of the bad
weather will be invited to the next
ceremony in May.
Advocates’ Clerk
FACULTY Services Ltd wish to
intimate that with effect from 1st
January 2000 Lesley Flynn will be
appointed as an Advocates’ Clerk,
taking over the management of the
stable previously known as the
Robertsons Stable. Alan Robertson
will be retiring after 28 years’ service
on 30th December 1999.
Conveyancing
COPIES of the Directory of Services
for Conveyancers are still available
from the Society by contacting
Sharon McFarlane on 0131 476
8151. Firms can order more than
one copy. Suggestions are also
being sought as to improvements
that can be made to the next
edition, and ideas should be sent to
Linsey Lewin on [email protected]
HE anti-trust trial is only one
o f M i c r o s o f t ’s t r o u b l e s.
Another problem is the lack of
security offered by some
Microsoft products. In August
of this year, for example, Microsoft’s
free MSM Hotmail service proved an
easy target for hackers, who gained
access to more than 40 million
Hotmail accounts. Some experts now
say that Hotmail should not be used
for e-mails of a confidential nature.
Even more worrying for Microsoft
is increasing customer dissatisfaction
and growing competition.
T
Not taken for granted
FURTHER FACULTY VISITS
THE Hamilton Faculty visit took place on 10th
November (right), left to right: Elspeth
Talbot, Secretary, Hamilton Faculty; Oliver
Adair, Council Member of the Law Society of
Scotland; Michael Scanlan, President; Neil
Coats, Dean of the Hamilton Faculty, Alastair
Thornton, Vice-President and Douglas Mill,
Secretary, Law Society of Scotland.
The top photograph shows the Dunoon
Faculty Visit on 29 November and those
featured are: Left to right, (Back Row), Douglas Mill, Secretary, Law Society of Scotland; Elspeth Black,
Robert Dundas, Rob Macpherson, John Thomson, Douglas Campbell, Martin Witherow, Graeme Wright and
David Preston, Council Member for Oban. Front Row, Alastair Thornton, Vice-President, Euan Macdonald,
Dean of the Dunoon Faculty, Michael Scanlan, President and Sheena Walker.
View on poinding
THE Scottish Law Commission
has published its provisional view
that poinding and sale should be
retained for goods in nonresidential premises, such as
commercial goods.
Their Discussion Paper comes
in response to a Bill introduced
by Tommy Sheridan MSP to
abolish poinding and warrant
sales.
The Commission concludes
that: “The considerations of
morality and social policy
applying to the poinding of goods
in dwellinghouses are largely
irrelevant in relation to nonresidential premises. Creditors
regard poinding and sale of
commercial goods as relatively
effective. Its abolition would
deprive some creditors of the
only available or effective
method of enforcement against
businesses.”
It continues: “Poinding and sale
against individuals is generally a
last resort. It is used where the
creditor does not have
information as to the debtor’s
employment or bank account and
so cannot use arrestment. The
Commission
asks
whether
debtors and others should be
required to provide such
information and whether debtors
should be required to attend
court to be questioned about
their income and assets.
“Effective and socially
acceptable sanctions to enforce
compliance are difficult to devise
since arrest and civil
imprisonment seem worse than
poinding.”
ASIM’s
capital choice
EDINBURGH is the venue for
the 7th annual conference of
the Association of Solicitor
Investment Managers. The
Conference
runs
from
Thursday 11 May to Saturday
13 May at the Roxburghe
Hotel and incorporates an
informal golf tournament for
members and sponsors.
ASIM was founded by a
group of solicitor investment
managers and exists to
encourage and support the
provision of high quality
investment managers’
services by solicitors’ firms.
Further details about the
conference and ASIM in
general can be obtained from
Heather Martin, PO Box 11,
Tonbridge, Kent TN11 8ZH, tel
01892
870065,
e-mail
[email protected]
The supremacy of Microsoft
products is no longer taken for granted.
Consumers are complaining about
having to pay for every Microsoft
update and retrain their staff in using
the new version.
Third-party software developers
also have reason to be dissatisfied. In
the case of Microsoft Word 6, for
example, their applications could only
be integrated by using the Dynamic
Data Exchange (DDE) technology. But
later versions of Word no longer
supported DDE and developers were
forced to purchase new toolkits.
Quality disputed
The quality of the Microsoft
products has also been disputed.
Microsoft NT is the business version
of Microsoft Windows, the operating
system for a single PC. A recent
product study, published by Bloor
Research, compared Microsoft NT
with a free-ware system called Linux.
Both systems were tested on nine
essential areas of performance. Linux
was ahead on six out of the nine counts,
with NT leading only in one area, while
the remaining two were drawn.
Microsoft faces an uncertain future after last
month’s US anti-trust trial. With nine out of ten
Scottish lawyers using Microsoft products is there
reason to panic? “No,” says IT specialist GEORGE
BLAIR, but for reasons other than you may expect.
Ready to strike
Microsoft’s competitors are getting
ready to strike. During the last 12
months Linux has already taken 11%
of the operating system market in
t h e US. All major hardware
manufacturers are now offering
network computers with an option to
install Linux free of charge.
In addition, Sun Microsystems has
decided to offer their Star Office
product – similar to Microsoft Office free of charge, with the added benefit
that it only takes up half the disc space
of Microsoft Office (the product can
be simply downloaded through the
Internet).
Watch closely
While it therefore makes sense to
watch these developments closely and
consider alternatives for Microsoft
products, there is no need for panic for
existing Microsoft users.
Provided you have purchased or will
purchase your products from a
reliable supplier with plenty of
experience in the information
technology industry and the legal
profession, you will be able to
continue to work even if the world’s
richest man goes bankrupt tomorrow.
Expanding firm
The situation changes, however, if
you are planning to invest in a
computer network to expand the firm.
If you are presently working with
Microsoft Windows, you do not
necessarily need to purchase
Microsoft NT. There are a number of
industry-standard operating systems
for networks available and NT just
happens to be one of them.
It is certainly not true as we often
hear that “if it is not on NT it is no
good or less powerful.” Unix, a nonMicrosoft network operating system,
for example, works just as well (and is
fully compatible with your existing
Windows).
Logical choice
Microsoft NT may not even be the
logical choice if you want to create a
network which can be further adapted
when your needs and preferences
change in the future.
During a recent forum in Santa
C r u z h a r d w a r e m a n u f a c t u r e r s,
including IBM, Compaq, SCO, Intel
and Samsung, made favourable noises
about a new Unix operating system
called “Monterey”. Ray Lane, Oracle’s
chief operating officer, said he wanted
to drop Windows NT as one of the
company’s primary development
platforms in favour of Unix.
Discussion about Java
Equally important is the discussion
about Java. This is a programming
environment developed by Sun
Microsystems. With Java a software
developer can produce an application
which runs on almost any operating
system. The Internet, for example, is
the world’s largest computer network
and runs on Unix using Java.
Sun Microsystems wants to make
Java available to the market as a
whole, but Microsoft intends to make
changes to Java and effectively create
a restrictive “Microsoft Java” version.
Sun Microsystems chief executive,
Scott McNealy, said recently: “There
is one company that is trying to be in
charge, but the rest of the world is
trying to be open.”
Application is crucial
What is crucial for work in the legal
profession is not the operating system
but the application which actually
does the job. The network operating
system is just a platform on which
you must be able to run
Windows, NT, Linux, Unix or any
other product. It should support
application programs such as
Microsoft Word, Star Office or any
practice management, business
operation and workflow system.
F i n a l l y, i n d e c i d i n g w h i c h
application is the most suitable for
your firm you should be guided by
such questions as “is it compatible
with other industry-standard
applications?” “what will it actually
do?” “can I test its performance?” or
“can data be transferred from one
application to another with a few
simple keystrokes and without loss of
information?”
These questions are more important
than the label on the packaging.
George Blair has worked for
22 years in the information
technology industry and is
managing director of Axiom
Business Computers Ltd.
NEWS
NEWS
People on the move
OBITUARIES
MDPs and the Four Principles
ADAIRS,
Dumbarton, have pleasure in
intimating that with effect from 1st
November 1999 their assistant
solicitor J. Scott Adair has been
appointed as an associate of the firm.
BLAIR & BRYDEN,
Greenock, Port Glasgow, Clydebank,
Dumbarton and Dunoon, intimate
that with effect from 30th September
1999, Kenneth Allan Gilmour retired
as a partner but continues to be
associated with the firm as a
consultant.
BURNSIDE KEMP FRASER,
Aberdeen, are pleased announce their
relocation to new premises at 48
Queen’s Road, Aberdeen, AB15 4YE.
Their DX number remains
unchanged but their telephone
number is now 01224 327500, the fax
number is 01224 327501 and the email address is law@burnsidekemp
fraser.co.uk
CAMPBELL CONNON,
Aberdeen and Aboyne and
MacDIARMID & CRAIG, Aberdeen,
intimate the amalgamation of their
practices with effect from 1st
December 1999. Dr D. C. Coull of
MacDIARMID & CRAIG will be
associated with the combined practice
as a consultant.
CAMPBELL SIEVEWRIGHT & CO,
Hamilton, Glasgow and
Kirkmuirhill, intimate that their
senior partner, David Campbell
Sievewright, retired with effect from
31st October 1999. The business of
the firm will be continued by the
remaining partners.
Bill Copeland, formerly associate
with NICHOLAS J. SCULLION & CO,
Hamilton, intimates that he has now
commenced practice in his own behalf
as COPELAND & CO, 50 Orchard
S t r e e t , H a m i l t o n , M L 3 6 P B,
telephone 01698 300157 and fax
01698 300164.
Elizabeth J. Coyle is pleased to
intimate that from 1st December
1999 she is a sole practitioner again,
Her firm COYLE & COMPANY
operates from 2 Hamilton Street,
Girvan, South Ayrshire, KA26 9EY
(formerly Coyle & Welsh’s Girvan
branch office). The telephone and fax
numbers remain 01465 715465 and
01465 715466. Her e-mail address is
Coyleco@btinternet. com and from
31st December 1999 she will
withdraw from the DX service and
will no longer have a DX box number.
CULLEN KILSHAW,
Galashiels, Melrose, Peebles and
Selkirk, initimate that with effect
from1st November 1999 their Selkirk
Office has been acquired by Ranald
Bruce who will from that date carry
on business as TAYLOR BRUCE & CO
at the same address, 22 Market Place,
Selkirk. The present phone, fax and
DX numbers remain unchanged.
James Cullen and David Kilshaw
continue as partners of CULLEN
KILSHAW in Galashiels, Melrose and
Peebles. Ranald Bruce has resigned as
a partner of CULLEN KILSHAW with
effect from 31st October 1999.
DOYLE & CO,
Edinburgh, intimate that Fiona
MacDonald is to retire from the
partnership with effect from 31st
December 1999. All other details of
the firm remain unchanged.
FOGGO WEBB,
Dingwall, are pleased to intimate
that from 1st November 1999
Alison Foggo and Roger Webb have
commenced practice from 1 Castle
Street, Dingwall, telephone 01349
867200. Alison Foggo was formerly
a partner with MIDDLETON ROSS
& ARNOT, Dingwall and Roger
Webb was formerly an Associate
with SUTHERLAND & CO,
Inverness. The new firm of FOGGO
WEBB, will specialise in criminal
defence work.
GILLESPIE MACANDREW, WS,
Edinburgh intimate that Barbara
Rachel Finlayson retired as a partner
of the firm with effect from 31st
October 1999. Mrs Finlayson
continues to be associated with the
firm as a consultant.
GOLDS,
Glasgow, are delighted to announce
that with effect from 1st October
1999 Craig Alexander Marshall has
joined the firm as a partner in its
Commercial Property Department.
Craig was previously a partner with
MACDONALD HENDERSON,
Glasgow.
HUGHES WALKER,
Edinburgh, are pleased to intimate
that with effect from 1st November
1999 Richard G. Mill has been
assumed as a partner of the firm.
LAIRD & MACINTYRE,
Glasgow, are pleased to announce that
Alan Holloway has been assumed as a
partner in the firm with effect from
1st November 1999.
LANDSMAN McROBERTS,
Aberdeen, intimate that Duncan
MacDonald has resigned from the
partnership and from private practice
in Scotland with effect from 31st
October 1999 and is emigrating to
Eire.
LOCKHARTS,
Ayr and Kilmarnock, announce the
retiral of two partners, Terry Ginezie
and Alan McKnight. Christine
Andrew and Aileen Craig have been
assumed as partners and Eilidh
Wilson has been appointed as an
associate. The firm name will remain
as LOCKHARTS.
MACFARLANE & COMPANY,
Glasgow, are pleased to intimate that
with effect from 1st December 1999
they have acquired the practice of
COLQUHOUN & COMPANY, Glasgow.
John Blain has joined MACFARLANE
& COMPANY as a consultant and
James W. Bradley has retired from
practice as at 30th November 1999.
MILLER STEWART,
Glasgow, advise that on the 1st
December 1999, the firm shall open a
new office at 124 West Campbell
S t r e e t , B l y t h s w o o d , G l a s g o w,
telephone 0141 332 9989 and fax
0141 332 6667. All other offices at 62
Woodlands Road, 80 West Nile
Street, 245 Crow Road and 257
Dumbarton Road remain unaffected.
The DX number for all branches
remains DX 500916 Partick.
MITCHELLS ROBERTON,
Glasgow, intimate that with effect
from 15th October 1999, Irene
Nicolson retired from private
practice and ceased to be an associate
with the firm. They further intimate
that with effect from 22nd October
1999 Lynn Bryson ceased to be an
associate with the firm upon taking
up another appointment. MITCHELLS
ROBERTON wish both these persons
well in their new situations.
WATSON & LYALL BOWIE,
Coupar Angus, are pleased to
announce that on 1st November 1999
Alison Margaret Hodge was assumed
as a partner of the firm which will
now continue with Kevin Edward
Lancaster and Alison Margaret
Hodge as partners, Lyall Bowie
having retired on 31st October 1999
for what both he and the remaining
partners trust will be a long an
enjoyable retirement.
WRIGHT & CRAWFORD,
Paisley, intimate with effect from
31st October 1999, John Tawse has
retired as a partner of the firm. He
will continue to practise on his own
account at 34 Sandyhills Drive,
Glasgow.
Sir,
Two things become clear from the articles by John Elliot,
Walter Semple and Ian Stubbs on this difficult subject.
First, it is very likely that MDPs will happen. Second, the
crux of the problem of acceptance lies with the “Four
Principles” of which lawyers are the custodians but which
are more or less opaque to non-members of the legal
profession.
The Big 5 perceive the acquisition of legal service skills to
be part of the overall service which they seek to offer their
clients.Their owners, often not accountants let alone
lawyers, view the purchase of legal firms as part of the
business strategy and the issues preventing this as driven
merely by professional self-interest. As such, they say, the
objections should be dealt with exactly as would any other
restrictive practice. They see the Four Principles as no
different from the “protections” which all agree nonlawyers are able to comprehend.
Why should the Four Principles be the concern of
lawyers alone? Of course lawyers are no longer specially
bred for the purpose and there is nothing in their
education or training which could not be comprehended by
non-lawyers.
The answer must lie elsewhere.
As Walter Semple has stated, the Four Principles predate
the professional bodies. Probably they are as old as
societies wherein citizens have rights.They are important
because it is essential in a free society that lawyers cannot
be forced to disclose their clients’ business. The
principles regarding independence and conflict of interest
are respected by lawyers as part of their deal with the state.
These rules are of no benefit to the lawyers but a burden
which they must carry in the public interest. In some
countries that burden is extremely heavy.
There is not the remotest possibility that the courts in
Scotland or elsewhere will extend immunity to the cohorts
of consultants of all sorts which are fielded world-wide by
the Big 5, whose populations dwarf national legal
professions. Inventing new rules, regulators and structures
only obscures and does not resolve the fundamental issue.
The solution may be for lawyers wishing to work in an
MDP or for that matter in other non-traditional providers
of legal services to cease to be solicitors,thereby freeing
themselves from the burden of the Four Principles. Of
course their clients would lose the benefits and would be at
risk of having their affairs disclosed. Unlike Prince Jeffri,
however, clients would have an informed choice. Those
who preferred to have their affairs kept secret would
continue to consult solicitors.
Yours faithfully,
Ewan G Kennedy
Faulds, Gibson & Kennedy
Scottish Solicitors Benevolent Fund
Sir,
The benevolent fund of Scottish Law
Agents Society was established in 1935
and that of the Law Society of Scotland in
1973. Both funds have as their objective
the provision of financial assistance to
Scottish solicitors or their dependants who
have fallen on hard times.
Over the years grants have been made
for a variety of purposes. Several of our
colleagues have died before retiral leaving
a spouse and/or family in desperate
circumstances. Several have retired with no
private pension and find it extremely
difficult to get by. The pressures of practice
nowadays mean that, more than ever,
illness (perhaps particularly mental illness)
can decimate a promising career.
Applications for help are prompted by all
sorts of reasons and it is humbling
sometimes to see what a great difference
our intervention can make.
Hitherto, both funds have been operated
through a joint committee with trustees
from both societies, administration being
provided by SLAS. This has meant that two
sets of accounts and two income tax
repayment claims have had to be
processed. There has also been an
inevitable overlap of other functions. The
Law
Reform
(Miscellaneous
Provisions)(Scotland) Act 1990 provided
relatively simple and inexpensive
machinery for the extra judicial
amalgamation of the funds. Against that
background the committee formed the
opinion that a larger and more
economically-run single fund of
approximately £150,000 would operate
more efficiently, producing increased
benefits. The hope is that this will attract
more sponsorship and open the way to
Multiple surveys
Sir,
I write in support of the letter in the November Journal from Willie MacRae,
Bo’ness who suggests that the answer to the problem of multiple surveys is to make
it standard for offers to be subject to survey within very strict time limits. Having
written one or two letters in more or less exactly the same terms many years ago I
could hardly do otherwise could I?
The main objection when I put forward these proposals was that they would lead
to a delay in the conclusion of missives. Since then I would guess that the average
time for conclusion of missives has increased from about a week to about a month
which seems to me to invalidate the objection to the proposals.
I hope Willie MacRae’s letter will receive proper consideration and that it will at
least be followed by local Faculties adopting that practice even if it again turns out
not to be possible to have it adopted on a nationwide basis.
Yours faithfully
Graeme H Pagan
Hosack and Sutherland, Oban
donations being more actively sought from
the whole profession. The view of members
of both societies has been canvassed over
the last four years and has confirmed that
of the office-bearers.
I am pleased now to be able to advise
members that the two funds were
amalgamated on 15 November last as “The
Scottish Solicitors Benevolent Fund”. Its
objectives remain as before but it must
now do more to meet the ever increasing
needs of its beneficiaries. Can I ask
members to help us do this? This year we
paid out £7,500 to 14 beneficiaries, but
that is not enough. Contributions by way of
Deed of Covenant or under the Gift Aid
Scheme are particularly welcome. Are there
faculties out there with a surplus on their
CPD accounts? If so, a distribution in the
direction of SSBF might be an acceptable
way of disposing of or reducing this.
Leslie Cumming of the Law Society is the
new fund’s treasurer.
In closing, may I record here a word of
thanks? Oyez Scotland have for the last
four years sponsored our golf day each
August, providing not only our largest
donations but a super outing. I am grateful
to them for their much valued input. SLAS
secretary, Mrs Janice H. Webster, has put a
power of work into the amalgamation and
will continue as its secretary. Without her
application and enthusiasm it would all
have taken so much longer and I am
pleased to acknowledge that here. Both
she and I are most appreciative too of the
assistance provided by the officials at
Scottish Charities Office.
Yours faithfully,
Ian D. Morrison, Convenor,
Scottish Law Agents Society
IAIN ANGUS MacLEOD,
(retired solicitor), Mauchline
On 5th July 1999 Iain Angus
MacLeod, formerly employee of
Cumnock & Doon Valley District
Council, Cumnock.
AGE: 49 ADMITTED: 1977
ALEXANDER GRAY,
(retired solicitor),
Port Ellen, Islay on 12th October
1999, Alexander Gray, formerly sole
practitioner, Port Ellen, Islay.
AGE: 87 ADMITTED: 1947
FRANCIS ALOYSIUS O’BRIEN,
(retired solicitor), Dumfries
On 28th October 1999, Francis
Aloysius O’Brien formerly partner of
F.A. O’Brien & Co, Dumfries.
AGE:92 ADMITTED: 1936
ALASDAIR MACLEAN GORDON,
(retired solicitor), Kilmarnock
On 13th November 1999, Alasdair
Maclean Gordon, formerly senior
partner of the firm of James Guthrie
& Co, Kilmarnock.
AGE: 68 ADMITTED: 1955
ALEXANDER ROBERT CARLE,
(retired solicitor), Aberdeen
On 14th November 1999 Alexander
Robert Carle, formerly partner of the
firm Mackenzie &Wilson, Aberdeen
and latterly consultant to the firm
Adam Cochran, Aberdeen.
AGE: 58 ADMITTED: 1966
HARRY WALLACE CANT, WS,
(retired solicitor), Edinburgh
On 21st November 1999, Harry
Wallace Cant, WS, formerly partner
of and latterly consultant of the firm J
& F Anderson, now known as
Anderson Strathern, Edinburgh.
AGE: 81 ADMITTED: 1954
LETTERS
LETTERS
Central heating solutions
Sir,
It says something about
domestic
conveyancing
in
Scotland that the November
Journal devotes a page to “central
heating chaos”. All conveyancers
will share the frustrations of
Rodger McGuire, but I hope we
don’t share his suggested solution.
The last thing we need is a practice
note. Practice notes, in my humble
opinion, can be devices which shift
responsibility from the client on
to the solicitor, whom the
promoters arrogantly assume
should be a higher moral being. I
think lawyers should reflect the
society they serve rather than
impose a covert code of conduct
upon it.
In particular, Mr McGuire’s idea
of a modest retention is not the
way forward. I tell my clients that
no house is perfect. Such a
retention
will
encourage
purchasers to find fault. Instead of
reducing the problem it will
increase tenfold. Anger, frustration
and esteem will all be casualties.
There are, however, practical
things we can do to reduce the
problem of defective central
heating and appliances.
It is my experience that most
claims are as a result of the
purchaser being unfamiliar with
the heating systems or appliances
in his new home. We encourage
our selling clients, if possible, to
show the purchaser how things
work and leave instructions about
the heating, where the stopcock is,
etc. If a claim arrives we suggest to
the selling client to contact the
purchaser direct. Most problems
are resolved this way.
Many agents now try and
restrict claims to items costing in
excess of a given figure to
discourage trivial claims. My firm
uses £75 as the threshold. This is
accepted by the other side in most
cases though some waste their
time deleting this altogether or
reducing it by £50. Last week we
received a claim from a solicitor
for two broken window handles. I
wondered why the solicitor would
Sir,
Mr McGuire’s letter in the November issue of
The Journal evokes the remarks often made in
Laurel and Hardy films by Oliver to Stan,
“Another fine mess you have got us into!” It
seems time to apply a little common sense to
the problems raised by solicitors’ involvement
in attempting to have sellers grant warranties
in respect of items of equipment about which
neither they, nor the surveyors acting for
purchasers, nor indeed anyone other than trade
experts, have any knowledge.
What is essentially impractical about all this
is that nobody has any idea of the state of the
utilities at the date of contract, which is the
date that matters. It is rather like a tenant in a
commercial lease foolishly accepting the
property to be in good and tenantable condition
without having had a full building survey.
We thus, when acting in residential sales and
purchases, make the assumption that the
systems are in a working condition and insist
this should be so at the date of settlement.
A purchaser should be told either to accept
everything in the state in which he finds it at
the date of settlement or to have the systems
thoroughly checked at his expense before the
contract is concluded.
even have agreed to send the letter
when replacement handles were
available in B & Q for £10. If all of
us discouraged trivial claims we
would be doing all our clients a
favour.
Let’s deal with appliances first:
Why do sellers agree to warrant
appliances, and why do purchasers
expect warranties? If you buy a
new
cooker
the
manufacturer/retailer will give
you a one year warranty. This can
be extended for a king’s ransom.
Yet in virtually all private sales
the appliances are years old, often
out of date models. The second
hand value of these appliances is
minimal. Shouldn’t we be saying
to purchasing clients: You cannot
reasonably expect these items to
work fully and if you were
purchasing them separately you
wouldn’t get any warranty. The
present arrangement is perverse
because it provides purchasers
with a warranty from a private
individual they could not enjoy
from a retailer under current
As regards the rest of Mr McGuire’s letter, it
must surely be the case that, if lawyers make
contracts and give clients remedies, they will
have discharged their duty and the sooner the
public are made aware of that, the better.
It seems to me that Mr McGuire’s proposals
would only foster the false expectation which
clients have that agents themselves have a
responsibility for implementing contracts
made on a client’s behalf.
That such expectations exist is further
illustrated by a recent transaction in which I
was involved for a seller. The purchaser failed
to pay the price on the date of entry and the
property was re-sold without loss. The seller,
nevertheless, felt he should have some redress
against the failed purchaser for the anxiety he
had caused.
I did of course point out to him that, if he felt
that the ultimate profit he made on the second
sale was insufficient, he had three years in
which to raise an action for solatium. He
thought I was just trying to find another job
for myself.
Yours faithfully
David A Johnstone, Barlas and Sharpe,
North Berwick
Regulation questioned
consumer legislation.
Unlike appliances, I think it is
reasonable for a purchaser to
expect that the heating works
commensurate with its age and
type. Most problems are with gas
heating. Our favourite clients are
the ones why have service
agreements. In the absence of
these, my firm advises all selling
clients to have their heating
serviced before the date of entry
so they have an independent
professional record of the state of
the heating if a claim arrives after
the date of entry. Some take our
advice, others don’t. If all firms
made a similar suggestion to their
clients we might just develop a
good practice for clients.
Better still, if the heavyweight
domestic conveyancing firms
started to make it a condition of
missives that a service agreement
or service certificate was exhibited
by the seller before the date of
entry then we could remove these
claims from our in-trays. Could
our Practice of Conveyancing
Committee not negotiate a deal
with Scottish Gas or whoever to
provide these? I’m game to insert
such a condition in my firm’s
offer if some others will try it
also. I’ll even encourage my
selling clients to accept such a
condition. Are there any takers?
Drop me a line and we can form a
Register of Warm Solicitors
(ROWS).
The time has come for solicitors
to encourage clients to be realistic
and mature. Clients seldom
question our reasons for the
advice we give on these matters.
Except for a very few sad souls,
clients accept the logic of our
explanation. If you’ll pardon the
pun, it’s time to reduce the heat of
conveyancing
transactions.
Instead of them being adversarial
duels, I think we as solicitors
should be exploring practical
initiatives. It’s time to remove the
stress rather than us taking the
strain for things whose value is a
tiny fraction of the price of the
house.
Yours faithfully,
Graeme McCormick
Conveyancing Direct, Glasgow
WRITE TO:
Sir,
As each week passes I become
more and more disillusioned.
We have to go to ridiculous
extents, in my view, to comply
with the Money Laundering
Regulations. Even in
transactions where no money
could possibly pass through our
account; even where the client is
a respectable local businessman
known personally to the
solicitor for more than a score of
years and whose picture as
President of Rotary or
Moderator of the High
Constables, Lord Dean of Guild
etc. etc. appears weekly in the
newspapers; yet we are required
to obtain a couple of documents
which anyone really intent on
laundering money will have
forged anyway to put on the
front of our files so that we pass
the Law Society audit.
Now we are being asked to put
on our business cards that we
are authorised to carry out
investment business by the Law
Society of Scotland. Who is
going to read that? Who is going
to be prejudiced one bit by the
absence of such irrelevant
information on our business
cards? No doubt Mr Leslie
Cumming will explain that to us
in a response. Shouldn’t we be
looking at some of these rules
and asking why they are
imposed and what purpose they
serve. Shouldn’t the Law
Society of Scotland be making
representations as to whether
our profession needs to be
encumbered quite so severely
by these rules rather than
immediately bowing down and
threatening withdrawal of our
means of livelihood if we do not
comply to the letter with stupid
regulations.
In our firm we estimate that it
will take approximately £3,000
to reprint our business cards.
Partly because of the
preponderance of, to my view,
largely unnecessary regulations
and procedures this has led to
the sorry state where to finance
that we will have to use up the
profit margin on about 30
nerve-wracking and tortuous
conveyancing transactions. Roll
on retirement.
Yours sincerely
Alastair H Anderson
Miller Hendry, Perth
Simple solution
Sir,
In reply to Alastair Anderson’s letter printed
above, The Law Society of Scotland operates the
simplest set of Investment Business Regulations
in the UK. The solicitors’ client accounts and
conduct of investment business regulations are
shorter and based on broad principle rather than
being a detailed list of do’s and don’ts unlike
regulations produced by other bodies.
From time to time the Law Society of Scotland
issues reminder letters, warning letters, and
general advice to the profession which are all
intended to help them with their risk
management strategies. If nothing else, it alerts
them to an area where some other solicitor has
fallen foul of problems which can impact much
more significantly than the cost of reprinting
stationery. Naturally it is for individual firms to
consider this guidance and to act upon it in the
way in which they think most appropriate. This
can and does include throwing it in the
wastepaper bin.
Equally, I can remind Mr Anderson that we have
had some very serious situations involving claims
on the Master Policy Insurance Scheme and the
Guarantee Fund where innocent partners have
suggested that the Law Society should have
drawn our attention to this matter before they
fell victim to the particular problem. It appears
that the Law Society is between a rock and hard
place in these circumstances.
I am, however, most concerned to read of Mr
Anderson’s workload in following the Law
Society’s guidance on Money Laundering
Regulations. I am surprised that he is having to
implement money laundering procedures by
examining bits of paper so that he can fill up a
client identification checklist in respect of people
whom he knows personally. The form most
commonly in use and which is contained within
the Simple Guide to the Accounts Rules has a
space which allows Mr Anderson or any other
solicitor to give an explanation as to why evidence
was not obtained. This includes making the
statement that I have known this person for
thirty years, or any other note which indicates
how the solicitor knows the client’s identify and
why it was not necessary to ask for bits of paper
to be produced.
This advice is regularly given out at seminars on
Accounts Rules and should be widely understood
by solicitors in general practice. I hope this
further reminder is helpful.
Yours Sincerely,
L.H. Cumming
Chief Accountant
Conflicts of interest
Sir,
John Elliot’s review of The First World
War by John Keegan is welcome, if
somewhat belated. The book was
published last year to critical acclaim; I
recall one reviewer mentioning that he
had taken it with him on his summer
holidays (1998) to Normandy, though
with the rider that one did not
necessarily have to go to Normandy to
read it. I read it at home with much
appreciation.
Mr Elliot thinks there is a “very real
obsession” in this country with World
War I. I doubt if the average citizen is so
obsessed with historical detail, but
certainly there is scarcely a family in the
land whose forebears were not touched
by it, hence the great interest. Annual
remembrance services regularly remind
us of this. Mr Elliot asks why we are so
“obsessed” and he rightly supplies his
answer towards the end of his note: “The
age of mass destruction had arrived...”
That is the point. The First World War,
more than any other event, was the
defining feature of the twentieth century.
It established norms that regrettably
have remained with us throughout the
whole century. As well as its own horrors,
it also ushered in the twenty-year crisis
of 1919 - 1939; it led to the Second
World War, which was simply a
continuation of the first conflict; and
both in turn spawned the innumerable
conflicts around the globe that have
characterised the second half of the
century; the enormous social changes
which followed in their train have altered
the world beyond recognition to those of
the earlier half of the century.
While I concur with Mr Elliot that John
Keegan’s is a superb book, I cannot agree
that we should “put it away and then
forget this century”. We will not make a
better job of the new century if we forget
how the mistakes of this century were
made. We need to learn from people like
John Keegan and to remember, not
forget, the lessons they teach us. I
venture to suggest that this also applies
to the law as well as to military matters,
including European Law which now
affects us so much and which also owes
its origins to these conflicts of the
twentieth century.
Mr Elliot’s concluding sentences
remind me somewhat of the no doubt
apocryphal story of the American
newspaper headline of the early
twenties: “Archduke Found Alive – War a
Mistake”.
Yours faithfully
David R. Anderson
Allan and Grant
Solicitors, Alloa
The Editor, The Journal, Studio 62, Sir James Clark Building, Abbeymill Business Centre,
Paisley PA1 1TJ or FAX on: 0141 561 0400 or E-mail: [email protected]
TEMPORARY SHERIFFS
TEMPORARY SHERIFFS
introduced s.35 of the Law Reform
(Miscellaneous Provisions)
(Scotland) Act 1990 giving power to
the Secretary of State, but in effect
the Lord Advocate, to appoint
temporary judges to avoid delays in
the administration of justice in the
High Court and in the Court of
Session. There has been as many as
nine temporary judges, seven drawn
from the ranks of sheriffs in
Scotland. It will not be difficult to
follow that if seven sheriffs are
away on High Court or Court of
Session duty without, incidentally,
an increase in salary, their duties in
the sheriff court require to be
undertaken by other sheriffs,
namely temporary sheriffs. This
arrangement has proved very
satisfactory and attractive for the
Treasury since the services of a
judge are obtained for the price of a
temporary sheriff. Lord Emslie
would never have permitted the
engagement
of
sheriffs
as
temporary judges regarding it as
something of a fraud on the public.
The large scale use of temporary
sheriffs is illustrated by the fact that
in the year to 31st October 1999
temporary sheriffs sat for an
aggregate of almost 6,300 days. This
is an alarming number and
represents the workload of 30
permanent sheriffs. Indeed some
The demise
of the
temporary
sheriff
temporary sheriffs had the distinct
air of permanence about them since
several were sitting on a full time
basis.
The inevitable conclusion is that
the use of the temporary sheriffs
has gone far beyond what was
envisaged in s.11 of the 1971 Act.
Temporary sheriffs have been
“shoring up” the system doing
approximately 25 per cent of the
workload in the sheriff courts.
Successive administrations have
been blinded by the economies of
the temporary shrieval system. We
were well on the way to a privatised
shrieval system flying full in the
face of the doctrine of the
independence of the judiciary in
view of the nature of the
appointment of the temporary
sheriff and the lack of security of
tenure.
The principle of security of tenure
is one which has troubled the
Temporary Sheriffs’ Association for
some considerable time. Since 1993
the Council of the Association has
regularly sought longer
commissions for temporary sheriffs
all to no avail. One known reason
for the administration not
recommending the grant of longer
commissions was the fear that it
might open the door to the
requirement to pay pensions to
temporary sheriffs. With hindsight
it might well be seen as a case of
pennywise pound foolish.
The lack of security of tenure was
aggravated by the recent decision of
the Lord Advocate, Lord Hardie, not
to renew commissions of temporary
sheriffs who had reached the age of
65 years although by statute,
permanent sheriffs now appointed
do not retire until the age of 70
years. The aggravation was
compounded by the fact that it was
indicated to three temporary
sheriffs that despite reaching the
age of 65 years their commissions
would be renewed. The Lord
Advocate’s policy and this
discriminatory cull were described
by one illustrious member of the
legal
profession
as
“an
uncomfortable manifestation of
power”.
The excessive use of the
temporary sheriff came to an abrupt
halt on 11 November 1999. The
judgment of the Appeal Court in
Starrs and Chalmers v Ruxton
which, at time of writing, has been
briefly but swiftly reported in 1999
GWD 37 - 1793, concludes, that a
temporary sheriff is not an
“independent
and
impartial
tribunal” within the meaning of
Art.6(1) of the European
Convention on Human Rights. Lord
Sheriffdom of Lothian and Borders
Practice Note: Non-availability of Temporary Sheriffs
JAMIE GILMOUR
examines the position
of the temporary
sheriff and how the
current situation is a
far cry from that
intended when the Act
to allow the
appointment of them
was introduced nearly
thirty years ago
HE temporary sheriff is a
creature of statute. The
power to appoint temporary
sheriffs was conferred on
the Secretary of State for
Scotland by s.11 (2) of the Sheriff
Courts (Scotland) Act 1971 which
states that: “Where as regards any
sheriff - (a) a sheriff is by reason of
illness or otherwise unable to
perform his duty as sheriff, or (b) a
vacancy occurs in the office of
sheriff, or (c) for any other reason it
appears to the Secretary of State
expedient so to do in order to avoid
delay in the administration of
justice in that sheriffdom, the
Secretary of State may appoint a
person (to be known as a temporary
sheriff) to act as a sheriff for the
sheriffdom”.
It was the intention of Parliament
that such appointments be made to
cope with the death or illness of a
permanent sheriff, his annual
vacations or a declinature of
jurisdiction. It was also to take
T
account of a sudden but transient
increase in the volume of business
in a particular sheriff court. What
has happened since 1971 is a far cry
from what was originally intended.
In 1980 there were some 26
temporary sheriffs. In 1988 the
number
had
increased
to
approximately 50. By 1995 the
number had increased to 120. The
zenith was subsequently reached
with 134 temporary shrieval
commissions being granted. The
dramatic increase was Treasury led.
Successive governments saw the use
of a temporary sheriff as a more
cost effective way to run the sheriff
court system. Temporary sheriffs
could do the work of a permanent
sheriff without enjoying the same
rate of remuneration and without
payment of any pension
contribution. A temporary sheriff
was engaged on a day to day basis
and, if necessary, an assignment
could be cancelled at short notice
without payment of any
cancellation fee unless the
temporary sheriff could certify that
he had suffered a loss of other
remunerative work. It was seen as a
flexible and economic way to put
bodies on the judicial bench. The
appointment of a temporary sheriff
was itself transient since, although
s.11 (4) of the 1971 Act empowered
the Secretary of State to grant a
commission to a temporary sheriff
until recalled (which did give the
impression of some permanence)
the convention developed of
commissions
being
awarded
annually and subject to review by
the Lord Advocate.
The use of temporary sheriffs for
the administration of justice in the
sheriff courts did not end there. The
temporary sheriff has been used to
sponsor the administration of
justice in the Supreme Courts.
Following the retiral of Lord Emslie
as Lord President of the Court of
Session in 1989 the then
Conservative Government
I, Gordon Nicholson, Queen’s Counsel, Sheriff Principal of Lothian and Borders, in pursuance of the
powers conferred by Section 15 (2) of the Sheriff Courts (Scotland) Act 1971, and all the common
powers enabling me in that behalf, order and direct as follows:
1 With immediate effect the business of the courts in the Sheriffdom of Lothian and Borders shall,
so far as is practicable, be programmed and dealt with in accordance with the following order of
priority:
(1) Cases involving a person or persons appearing from custody.
Trials, both solemn and summary, in which a statutory time limit is imminent.
Trials involving witnesses who are children or otherwise vulnerable.
Pleas court.
First diet courts and intermediate diet courts.
(2) Referrals and appeals from children’s hearings.
Mental health applications.
(3) Family actions involving disputes about children.
Adoption and freeing for adoption cases.
Ordinary courts, options hearings courts, and motions courts.
Sequestrations and liquidations.
Summary cause and small claim courts (excluding proofs and full hearings).
(4) Trials, both solemn and summary, which are not covered by the provisions of subparagraph (1) hereof.
(5) Ordinary proofs and debates (other than those in family actions involving children).
Summary cause proofs and small claim full hearings.
Fatal accident inquiries (unless the subject matter is of considerable public importance).
(6) Any other business not specified above.
2 Sheriff clerks shall have regard to the above order of priorities when allocating business.
3 Where a court is unable to complete all of the business allocated on any given day, business
having the lowest order of priority shall be discharged in order to ensure that business having
higher priority is completed.
4 This direction shall subsist until further notice.
I appoint this Practice Note to be inserted in the Act Book of Edinburgh and to be published on the
Notice Boards of all Sheriff Courts within the Sheriffdom of Lothian and Borders.
Cullen at page 39 of his Opinion
states “...appointment by the
executive is consistent with
independence only if it is supported
by adequate guarantees that the
appointed judge enjoys security of
tenure. It is clear that temporary
sheriffs are appointed in the
expectation that they will hold
office indefinitely, but the control
which is exercised by means of the
one year limit and the discretion
exercised by the Lord Advocate
detract from independence”.
The judgment has sent a tidal
wave through the system of
administration of justice in Scotland
affecting along the way accused
p e rs o n s, l i t i g a n t s, l aw y e rs,
witnesses, procurators fiscal, sheriff
clerks, temporary sheriffs and
sheriffs since temporary sheriffs
will no longer undertake any new
criminal or civil cases. The
judgment has also put the damper
on the engagement of temporary
judges.
There may be an appeal to the
Judicial Committee of the Privy
Council by the Lord Advocate but in
the immediate term the judgment
has major repercussions for the
operation of both criminal and civil
business in our sheriff courts. Short
term it will result in minor havoc in
respect of the timetabling of all
manner of business in the sheriff
court. Trials will require to be
adjourned and adjourned again.
This will possibly give rise in the
future to challenges that accused
persons are not coming to trial
within a reasonable time, in possible
contravention of Art.6 of the
Convention. Priority will require to
be given to cases involving young or
vulnerable individuals. Priority will
also require to be given to cases
which might otherwise be time
barred. Many prosecutions will be
abandoned by procurators fiscal,
against the public interest. In
addition there will be major
difficulties for witnesses who will
find themselves trying to recall the
facts of an incident of trial diet
many, many months after the
event. There will no doubt be test
cases following the Starrs/Chalmers
judgment concerning procedural
matters where a temporary sheriff
was involved and where a
temporary sheriff proceeded to
conviction and sentence. In the
longer term, the structure of the
shrieval system as we know it may
require to be radically overhauled,
resulting in more and more
permanent sheriffs being appointed
and being required to float from
court to court rather than be
entrenched in one court house or
indeed within one sheriffdom.
Those advising the Minister of
Justice, Jim Wallace QC, on dealing
with the crisis will require to sift
TEMPORARY SHERIFFS
through the opinions of Lord
Cullen, Reed and Prosser to see if
there is light at the end of the
tunnel enabling the Scottish
Executive to appoint temporary or
part time sheriffs in some shape or
form whilst fulfilling the criteria of
independence of the judiciary and
security of tenure. An appeal to the
Judicial Committee of the Privy
Council is unlikely to alter the
import of the Starrs/Chalmers
judgment but it may give guidance
to the Scottish Executive in finding
a solution.
Such a solution may be difficult
and intricate to find given the
portents of the judgment but,
considering the observations of
Lord Reed, certain criteria require to
be addressed. These include (a)
manner of appointment; (b) term of
office; (c) existence of guarantees
against outside pressures and (d) the
appearance of independence.
The Appeal Court did not appear
to have a difficulty coming to the
conclusion that the initial
appointment of a temporary sheriff
by the executive was “not
inherently objectionable”. The
conclusion was that the present
manner of appointment of
temporary sheriffs did not point
towards a lack of judicial
independence. There has, of course,
been much talk about the
TEMPORARY SHERIFFS
establishment of a judicial
appointments board to select judges
and sheriffs thus removing the
privilege from the Lord Advocate,
introducing transparency into the
process of selection, and also
removing observations of patronage
and cronyism which critics
inevitably voice when appointments
are made.
However, taking a lead from s.95
of the Scotland Act 1998 which
empowers the First Minister to
appoint permanent sheriffs after
consultation with the Lord
President, there is nothing to
prevent the Lord President having
his own ad hoc committee drawn
from sheriffs principal, sheriffs,
senior members of the Faculty of
Advocates and the inevitable layperson who knows something about
the operation of the sheriff court to
advise on the appointment of
temporary sheriffs. Such
individuals who appear regularly in
court and have their ears close to
the ground are best placed to
determine the best candidates.
On the issue of term of office, one
factor is certain, bearing in mind the
views expressed by the Appeal
Court judges. It will not be possible
for the purpose of maintaining
judicial independence, to grant a
term of office to a temporary sheriff
which is renewable. Lord Reed at
page 19 of his Opinion draws
attention to the European Charter
on the statute for judges: “Clearly,
the existence of probationary
periods or renewal requirements
presents difficulties, if not dangers,
from the angle of the independence
and impartiality of the judge in
question, who is hoping to be
established in post or to have his or
her contract renewed”.
Observations have been made that
in general the appointment of
temporary judges and the
appointment of judges for
probationary periods is inconsistent
with judicial independence.
Significantly, therefore, the Scottish
Executive may require to exclude
from the ranks of temporary
sheriffs individuals who have
aspirations to be permanent
sheriffs. Lord Reed at page 21 of his
Opinion draws attention to the
extra-judicial observations made by
Kirby J. of the High Court of
Australia: “But what of the lawyer
who would welcome a permanent
appointment? What of the problem
of such a lawyer faced with the
decision which might be very
upsetting to government, unpopular
with the media or disturbing to
some
powerful
body
with
influence? Anecdotal stories soon
spread about the ‘form’ of acting
judges which may harm their
chances of permanent appointment
in a way that is unjust. Such
psychological pressures, however
subtle, should not be imposed on
decision-makers”. The single
conclusion must therefore be that
temporary sheriffs will require to be
appointed like permanent sheriffs
ad vitam aut culpam.
The third consideration relates to
the existence of guarantees against
outside pressures such as are
available to permanent sheriffs in
terms of s.12 of the 1971 Act which
sets out an established procedure for
the removal of a sheriff by reason of
i n a b i l i t y, n e g l e c t o f d u t y o r
misbehaviour but which specifically
excludes temporary sheriffs. It is
made clear in no uncertain terms by
Lord Reed at page 26 of his Opinion
that “...a temporary sheriff does
not, as a matter of law, enjoy
anything which constitutes security
of tenure in the normally accepted
sense of that term”. Accordingly, to
have a pool of temporary sheriffs,
provision will require to be made
for an independent procedure for
the removal of a temporary sheriff
on the grounds stated above.
However, the position is not as
simple as that since the security of
tenure relates to a part-time
resource which is expected to sit on
the bench in the sheriff court for a
suggested number of days each
year. Security of tenure, therefore,
will include allocation of work.
“Sidelining” or non-allocation of
work effectively amounts to
removal from office. That would be
incompatible with any provision for
a temporary sheriff made in terms
similar to s.12 of the 1971 Act. A
m e c h a n i s m w o u l d , t h e r e f o r e,
require to be in place, independent
of the executive, to call into
question alleged non-allocation of
work. Careful consideration will
also be required to be given to any
request by the executive for a
temporary sheriff to carry out a set
number of days. There could be no
sanction for not carrying out a
recognised number of days per
annum for such sanction would be
an unacceptable external pressure.
The last criterion is the
appearance of independence, the
tribunal commanding public
confidence. This inspires notions
and concepts of independence,
i n t e g r i t y a n d i m p a r t i a l i t y.
Significantly, the Appeal Court held
that the judicial oath is an
insufficient guarantee to avoid a
legitimate doubt about the
avoidance of a conflict of interest
illustrated by the fact that in terms
of s.6 of the 1971 Act permanent
sheriffs are not entitled to practice
law. The serious question, therefore,
arises whether a part-time sheriff
should not be in a similar position.
The court did not accept that in
the present appeal there was a
legitimate doubt on the matter of
impartiality or independence but
the red flag was waving that if a
temporary sheriff was to be
involved in civil proceedings, some
legislative safeguard required to be
in place against a reasonable
apprehension of bias. The inevitable
conclusion is that, unless or until
there is some legislative safeguard,
there might only be a future for the
temporary sheriff in criminal
matters.
In summary, therefore, to appoint
a pool of temporary sheriffs and to
accord with the Starrs/Chalmers
judgment, it is desirable but not
necessary to alter the present
system of appointment. It will be
obligatory to appoint temporary
sheriffs ad vitam aut culpam. A
formal procedure for removal
divorced from the executive will be
required in respect of an allegation
of inability, neglect of duty or
misbehaviour. A mechanism to
challenge or investigate
“sidelining” will need to be in place.
This, in turn, will require some
indication of the minimum and
maximum number of days it is
expected that a temporary sheriff
will occupy the judicial bench
otherwise there will be the
inevitable question of when is a
part-time sheriff not a part-time
sheriff? This will put a governor on
an abuse of the part-time system.
Finally, there will be the
requirement of a formal safeguard
to secure the appearance of
independence at least in relation to
civil cases conducted by a temporary
sheriff.
But the dilemma for the Scottish
Executive does not end there. The
permanent appointment of a
temporary sheriff raises also the
issue of payment of a
commensurate salary in view of the
permanency of the commission
since the temporary sheriff is not
being appointed to office on an ad
hoc basis. To pay other than
commensurate salary would be
unequitable and open to challenge.
Further, the temporary sheriff
receiving a commission ad vitam aut
culpam may well be entitled to a
pension contribution paid on a pro
rata basis. The UN Basic Principles
on the Independence of the
Judiciary makes reference not only
to the term of office of a judge being
secured by law but also adequate
remuneration and pension.
There will also be the requirement
to pay fees to temporary sheriffs for
additional work. Presently
temporary sheriffs are paid at halfrate for dealing with additional
work such as preparing stated cases
or writing judgments. This meant
that if it took two days to write a
judgment the temporary sheriff
received a fee equivalent to one
court day. If a permanent sheriff has
a writing day to prepare a judgment
(during the present crisis these will
be as scarce as hens’ teeth) normal
salary of course, is paid. The new
found status of a temporary sheriff
may require him to be adequately
and properly remunerated for
additional work.
The big attraction of the
temporary shrieval system is its
flexibility and cost effectiveness. A
new system can again be flexible to
deal with illness, holidays and
sudden increase in business but the
cost effectiveness will disappear on
an obligation to pay commensurate
salary, pro rata pension and
additional fees. The sheriff courts
fulfil an important and significant
social duty handling the bulk of civil
and criminal business in our courts.
That duty is not being presently
fulfilled. For years successive
governments and those advising
them have been obsessed by cost,
blinkered to other considerations
which the Starrs/Chalmers
judgment has now brought to
prominence. There have long been
accusations of anonymous advisers
knowing the price of everything but
the value of nothing. There is no
alternative but to grasp the nettle of
expense and, instead, engage a
greater number of “floating”
Temporary Sheriffs- Article 6(1) of the European
Convention on Human Rights
Hugh Latta Starrs and James Wilson Chalmers v PF
Linlithgow
PF Linlithgow v Gary John Johnstone and David
Michael Gunn
THE Crown Office have confirmed that following the decision of
the Appeal Court in the above cases, full consideration is being
given to the question of an appeal to the Judicial Committee of the
Privy Council.
In the meantime, interim instructions have been issued to
Procurators Fiscal that if a part heard trial has been set down to be
continued before a temporary Sheriff, Procurators Fiscal should
invite the court ex proprio motu to discharge the trial diet and fix
a fresh diet of trial to proceed before a permanent Sheriff.
In respect of trials set down to commence before a temporary
Sheriff, Procurators Fiscal are instructed to invite the temporary
Sheriff to adjourn the trial diet in order that the trial may take
place before a permanent Sheriff. It is considered that it remains
competent for temporary Sheriffs to deal with matters other than
those which involve determination of the criminal charge and in
other instances to discharge the trial diet and fix a new diet of
trial.
District Courts
The Lord Advocate also considers that the cases may have
implications for prosecutions in the District Courts. Specifically, he
considers there are grounds for a view that the position of Justices
who are also councillors might be affected by technical aspects of
the decision. Consequently, on November 19 1999, the Lord
Advocate instructed Procurators Fiscal, as an interim precautionary
measure, that they should not proceed with prosecutions before
Justices who are also councillors. The same action to be taken in
respect of temporary Sheriffs is to be followed for these Justices.
The Lord Advocate has said that this action is not intended in any
way to call into question the integrity of those Justices. It is an
interim measure until a concluded view has been reached by the
Lord Advocate and the Minister for Justice on the compatibility of
courts presided over by such Justices with the European
Convention on Human Rights.
Elish Angiolini
Head of Policy Group
Crown Office
permanent sheriffs and a small pool
of temporary sheriffs who, on the
basis of what I have said above, may
require, at first, to be drawn from
the ranks of retired solicitors or
retired sheriffs. If that is the course
that has to be taken then it is
imperative for the efficient and
economic operation of the system
that the assignments of floating
sheriffs and temporary sheriffs are
centrally controlled by a booking
unit within the Scottish Executive
Justice Department adequately
staffed and remunerated. If floating
sheriffs fall under the control of
sheriff clerks within a particular
sheriffdom then they are “gobbled
up” and effectively become resident
sheriffs.
Urgent and positive action is
required by the Scottish Executive
to arrest and improve the present
situation in our sheriff courts. There
may be residual work for temporary
sheriffs into the year 2000 but
appointment is a separate issue
outwith the scope of this article. The
temporary sheriff as presently
recognised dies on 31 December
1999. The demise will have nothing
to do with any millennium virus.
Jamie Gilmour has been a
temporary sheriff since 1988 and
secretary of the Temporary
Sheriffs’ Association from 1993 to
date. Any views expressed in the
article are personal and are not
necessarily the views of any other
member of the Temporary
Sheriffs’ Association.
TEMPORARY SHERIFFS
S C O T T I S H PA R L I A M E N T
PROFESSIONAL BRIEFING
Wake-up call to find out more Battles ahead over human rights
about human rights
I
HE “temporary sheriffs”
decision has been a wakeup call to practitioners
and many others to make
it their business to find
out more about human rights.
The principal effect of the
decision itself will be to
strengthen the integrity of our
administration of justice and a
judicial appointments board is
now inevitable.
What of other implications?
T
Well, on the one hand, whilst there
will be a short term disruption of
business and a need to appoint more
sheriffs to meet demands most of
the more alarmist headline
predictions of “Barlinnie’s gates
swinging open” and a “bigamy
bonanza” are unlikely to be fulfilled
as test cases are brought forward.
On the other hand, for
practitioners the broader, more
profound and more lasting
implications can only be understood
if not only the decision but the
reasoning underlying the decision is
placed within its context of Article 6
of the European Convention on
Human Rights (ECHR) and how the
ECHR is to be given further effect
in our legal system.
The case itself was decided within
the scope of the Lord Advocate’s
liability under Section 57 (2) of the
Scotland Act which provides that “a
member of the Scottish Executive
has no power to make any
subordinate legislation, or to do any
other act, so far as the legislation or
act is incompatible with any of the
Convention rights...” The “act” in
question was, of course, a
prosecution before a temporary
sheriff and the decision was that a
temporary sheriff, due to lack of
security of tenure, did not
constitute an “independent and
impartial tribunal” as required by
Article 6 of the ECHR (“right to a
fair and public hearing”).
The Human Rights Act
Well, one might be tempted to
exclaim “you ain’t seen nothing
yet!” The point is that the full
ALAN MILLER examines the
decision on temporary
sheriffs and suggests that
there are more profound and
lasting implications for
practitioners to understand
impact of the ECHR, and of Article
6, will only be felt after the Human
Rights Act itself comes into force in
Scotland and throughout the United
Kingdom on October 2, 2000.
From that date, all courts and
tribunals must take the ECHR into
account and will be required to
interpret all legislation, in so far as
is possible to do so, in a manner
compatible with the ECHR.
It will be unlawful for a “public
authority” (not only local
authorities but the public functions
of a broad range of “quangos”) to
act in a way which is incompatible
with the ECHR.
In effect our laws and proceedings
will come to be made and
administered within the context of
the ECHR.
An “independent and
impartial tribunal” and
Article 6 of the ECHR
Article 6 (1) states that “In the
determination of his civil rights and
obligations or of any criminal
charges against him, everyone is
entitled to a fair and public hearing
within a reasonable time by an
independent and impartial tribunal
established by law”.
A “fair and public hearing” applies
not only to a criminal charge but to
“civil rights and obligations”. The
rights or obligations in question
must be “civil”, have a basis in
domestic law and there must be a
“determination” of the rights or
obligations in question. Each
condition has an autonomous
definition within the ECHR and
needs
careful
analysis
but
Strasbourg case law provides the
following examples which illustrate
the broad scope - contracts, land or
property disputes, personal injuries,
family law, employment law,
licences, etc.
A “fair and public hearing”,
generally speaking, provides the
right to effectively participate and
can include the right to be present,
to disclosure, equality of arms,
adversarial procedure and a
reasoned judgment, etc. Its scope is
much broader than would be
immediately obvious from the
“temporary sheriffs” case.
Numerous decisions concerning
“civil rights and obligations” are
taken by bodies other than courts or
tribunals. For example, professional
disciplinary hearings, etc. Many of
the administrative decision-making
processes of local authorities planning
and
environment,
licensing, social work, education,
etc. - will clearly need re-visiting.
Broadly speaking, either such
decision-making bodies must
comply with Article 6 (1) or there
must be a right of appeal or review
to a body which does meet Article
6(1) requirements. For example, a
sheriff (properly appointed!) or
judicial review. For such appeal or
review bodies to meet Article 6(1)
requirements they must enjoy a full
appellate jurisdiction - i.e. going
beyond the Wednesbury doctrine of
irrationality, impropriety and
illegality and be able to examine the
merits, the facts governing certain
administrative decisions so as to
determine “proportionality” and
hence lawfulness.
“Proportionality”, an autonomous
concept of the ECHR, requires that
the interference with a right by a
public authority must be in
accordance
with
law
and,
importantly, go no further than is
necessary to “meet a pressing social
need”. The more important the
right (such as Article 6) the more
demanding is the application of this
test and it is this concept of
“proportionality” which provides
the ECHR with its dynamism as a
“living instrument”, will broaden
the scope of judicial review and
should be of most concern to
decision-makers and practitioners.
Practitioners checklist
As an illustration of how
practitioners must then prepare to
raise their game in providing legal
advice and representation the
following suggested checklist may
be of some assistance.
a) Is there an ECHR point?
b) What is the ECHR
jurisprudence?
c) What has been the domestic
interpretation of ECHR
jurisprudence and what margin
of appreciation may be
relevant?
d) Which exemptions to ECHR
articles, if any, may be relevant?
e) If certain exemptions are
relevant, what are the tests of
legality and proportionality?
f) Consider appropriate potential
remedy, if any?
In conclusion, whilst the
“temporary sheriffs” decision may
not have pleased everyone it will be
of benefit to the profession as a
whole if it has served notice that no
practitioner can now afford not to
make it his or her business to find
out more about human rights!
Professor Alan Miller is a leading
authority on human rights –
practising as a partner with the
Human Rights Law Consultancy, a
division of the Lambie Law
Partnership. He is also President of
the Glasgow Bar Association and a
Member of the Centre for the Study
of Human Rights Law at the
Glasgow Graduate School of Law, a
joint initiative of the universities of
Glasgow and Strathclyde. He has
been appointed by the Scottish
Office to represent nongovernmental Scottish interest in
the Home Office Task Force which is
overseeing the preparations of the
implementation of the Human
Rights Act throughout the United
Kingdom.
CAN say with total
confidence that those of us in
the Parliament who have a
Justice and Home Affairs
remit have been kept
i n c r e d i b l y b u s y. T h i s i s
particularly the case since it was
decided by the Executive to
include all aspects of land reform
within the remit of the Justice
Minister.
It is understandable why the
Executive chose to do so.
Undoubtedly, something like the
Abolition of Feudal Tenure Bill
could only really be covered by
someone already carrying the
legal brief but that then meant
that all and any related Bills
would, to be consistent, also have
to go through the same route.
The result has been an
overloaded agenda for both the
Minister and the Justice and
Home Affairs Committee of
which I am the Convener never
mind the fact that I am also
shadowing Jim Wallace for the
Scottish National Party. It also
means that demand outstrips the
possibility of supply and I am
well aware that there are many of
you out there with your own
priorities which may not be being
met by either the Executive or
the Committee.
However, along with the rest of
the SNP, I do welcome the moves
towards land reform including
the abolition of feudal tenure. It
would have been one of our early
priorities therefore, the moves
which the Executive has made so
far are welcome. It is the SNP’s
position that these proposals do
not go far enough because while
a community right to purchase is
integral to the SNP’s approach
we wanted to go further in giving
even those communities who did
not wish to purchase a real say in
the management of land. That
this is missing from the
Executive’s proposals is a matter
of some regret for us and will no
doubt lead to some healthy
debates when we reach the
amendment stage in Parliament.
While the upcoming Land
Reform Bill will be of interest to
those solicitors who are already
specialising in that area of law,
the Abolition of Feudal Tenure
Bill will have an effect on all
Continuing our monthly series of articles by MSPs
with a legal background, Roseanna Cunningham QC,
the SNP’s shadow justice minister, welcomes some
of the Executive’s early legislative activity but
maintains there are other areas where she
has cause for concern
solicitors who deal with
conveyancing. It will be a few
years before it comes into effect
and other Bills are planned which
will have equally wide ranging
implications. It is assumed that
solicitors are happy enough with
what is being proposed but no
doubt the new legislation may
lead to further demands that
conveyancing fees be
reconsidered given the
expectation that it will simplify
things considerably.
Equally interesting will be the
debates on the Adults with
Incapacity Bill which again has
SNP support. Indeed, I would be
surprised if there was anything
but wholesale endorsement
across the Chamber for the
majority of the sections of this
Bill. Where the controversy will
arise is in the debates on the
medical aspects of the legislation
and whether this Bill does or does
not introduce euthanasia by the
back door. SNP members will
have a free vote on these issues
and I assume the other parties
will do the same. Experience
shows that a debate such as this
can be more interesting than
most – simply because it will be
unpredictable and no doubt
because of that, there will be
massive media interest. Clearly,
many solicitors will be involved
in this area of law and will I hope
have followed proceedings with
interest. Certainly, the Law
Society has made vigorous
representations on the absolute
necessity of the Bill and it is
hoped that the new proposals for
welfare attorneys will have the
force of law by next summer.
Lest you think that all is
sweetness and light in the Justice
and Home Affairs arena in
Scotland, let me put your minds
at rest. There are areas of real
difference between the Executive
and the SNP.
On Freedom of Information, we
would have gone much further
than seems to be indicated by the
Justice Minister and we remain
sceptical as to his ability to hold
the line between now and the
introduction of his Bill even on
what has been achieved in his
negotiations with Jack Straw.
There may be battles ahead on
that front just as there may also
be on the issue of human rights
which is turning out to be a very
vexed area of law indeed.
From the start the SNP has
been more than happy that the
European Convention of Human
Rights was incorporated into the
Scotland Act and therefore into
all devolved responsibilities.
Nevertheless, even in these early
months real disquiet has arisen
about the level of preparedness of
the Executive for the implications
of ECHR. Whether it was in the
debates on the Ruddle Bill, or the
decisions of the Courts and the
resultant impact on the whole of
Scotland’s justice system, there is
a major question as to the quality
of the legal advice which failed
somehow to see any of this
coming. That is not good enough
and is why the SNP is now
calling for the setting up of a
Human Rights Commission for
Scotland. When every piece of
new legislation going through
the Parliament requires a
declaration that it does not have
ECHR implications, Parliament
requires to have confidence in
that advice. Right now, that
cannot be said to be the case and
is a major failing of the
Executive.
Elsewhere, there are other
causes for concern. It has long
been a criticism of the
Westminster administration that
regardless of the party in power,
the way the Scottish civil and
criminal justice system has been
treated is little short of
scandalous. Bits and pieces of
legislation tacked on here and
there to bills largely irrelevant to
Scotland made even finding out
about the current state of
Scotland’s laws extremely
difficult. That is something
which should have changed
although there is evidence that
Westminster and Whitehall are
having difficulty coming to terms
with the new dispensation, since
almost every week we hear of yet
another piece of Westminster
legislation which includes clauses
relating to devolved areas.
What has not changed however
is the inability to view the
system in any holistic way. This
is not just trendy terminology.
Decisions made in one part of the
justice system are liable to have
long term far reaching
consequences for other parts of
the system. For some reason this
continues to happen and the
recent announcement regarding
cuts in the prison budget and the
declining numbers of police
officers, all apparently to fund a
new Drug Enforcement Agency
which will presumably, if
working efficiently, add to the
burden of both the police and the
p r i s o n s e r v i c e, l o o k l i k e
singularly ill advised moves.
It is a great pity that the
opportunity was not taken in this
first year to stand back and try
and view the system as a whole
before diving in to make changes
here and cut budgets there. In
that, the Executive has chosen to
follow the same mistaken path as
Westminster, something which
we could well have done without.
Scotland’s justice system may be
one of the smallest in the world
but it is one of the best and
deserves a great deal better
than this.
FINANCIAL SERVICES
FINANCIAL SERVICES
The regulation of professional firms
T
Mainstream and
non-mainstream
One of the key issues addressed
by the paper is where the dividing
line should be drawn between what
the paper terms “mainstream”
investment business and the “nonmainstream” business in which
solicitors who do not hold
themselves out as financial experts
are unavoidably involved when
providing legal advice. The
intention is that the former should
be subject to FSA regulation and
that the latter should be excluded.
As far as mainstream business is
concerned, the paper proposes two
categories of person within a firm
over whom the FSA should have
authority. The first category
comprises “authorised” persons, i.e.
financial services specialist
practitioners, whether solicitors or
fee-earners. Most such persons
have already passed an approved
examination, but for those who
have not, and have instead been
accorded qualified person status
through “grandfathering”, the FSA
intends to retain the power to
require that a specified
examination should be passed at
some time after N2.
The second category of person
over whom the FSA will hold sway
is the “approved person”, meaning
broadly those within the firm who
are “likely to be able to exercise a
significant influence” over
authorised persons or will be
involved with them in dealing with
clients or their property, in relation
to regulated activity. This category
will certainly include compliance
partners, but it may also extend to
other partners and members of
firms’ management committees.
Approved person status will
probably not necessitate any
financial services qualification, but
will bring the individuals
concerned within the disciplinary
powers of the FSA.
The concept of non-mainstream
business was discussed in a
consultation paper issued by the
Treasury in February 1999. This
sought views on a draft Financial
Services and Markets Act
(Regulated Activities) Order,
delineating the scope of regulated
activities under the Financial
Services and Markets Bill
(“FSMB”), which will replace the
Financial Services Act of 1986.
‘
examples of activity which would
be likely to qualify.
The Treasury criteria are that in
order to qualify for exclusion from
regulation:
1. t h e a c t i v i t y c o n c e r n e d i s
ancillary and subordinate to a
professional service,
2. t h a t i t d o e s n o t i n v o l v e
marketing packaged financial
products and
3. that the firm receives no
payment other than from the
client.
Among the examples of activities
cited in CP 30 as being likely to
qualify as non-mainstream are:
• Solicitors arranging the sale of
shares for executors or the
purchase of shares for trustees,
without providing investment
advice.
• A solicitor acting in relation to
an estate or trust holding unit
trust and share certificates and
collecting the dividends accruing.
The FSA has no wish to double the
number of organisations for which it
is responsible
One of the principal objectives of
the Treasury and the FSA in
structuring the new regime has
been to provide reassurance to
solicitors with a purely incidental
involvement in financial services
that they would not be vulnerable
to the risk of committing the crime
of undertaking regulated activity
without authorisation - i.e. to avoid
the need for “precautionary”
authorisation. Clearly there is an
element of self-interest here,
because the reality is that the FSA
has no wish to double the number
of organisations for which it is
responsible, by taking onto its
books solicitors who are not
involved in financial services
proper.
CP 30 makes no attempt to define
“non-mainstream”, but reiterates
three criteria laid down by the
Treasury in its statement of 13
October 1999 on the regulation of
professionals (the text of which can
be found on the Treasury web site
www.hm-treasury.gov.uk) and
supports this with a number of
• A conveyancing solicitor
expressing the opinion that the
mortgage which a client is
arranging for himself may be
unsuitable and recommending
that the client consult an
Independent Financial Adviser
(“IFA”).
• A solicitor acting in relation to
an estate and recommending the
sale of all the assets, including
unit trusts and shares, to pay
funeral expenses and debts.
• A family lawyer obtaining from
an IFA valuations and advice as
to the best way of dealing with
unit trusts, pensions and joint
life endowment policies, and
negotiating a financial
settlement on the basis of this
information.
• A solicitor discussing with a
client investment advice received
from an authorised third party,
commenting upon it and
arranging deals consequent upon
it, but not providing alternative
product recommendations to the
client.
What is noteworthy about these
examples is that they are all very
restrictive except for the last one,
which enables solicitors who
profess no financial expertise to sail
perilously close to the regulatory
wind, by discussing with clients
matters outside their own
competence and making
arrangements in regulated
investments on the basis of those
discussions.
It is perhaps because of this risk
of solicitors exceeding the limits of
the proposed exclusions that CP 30
anticipates that some firms may
wish to seek authorisation for nonmainstream business even though
they have no intention of
undertaking mainstream business.
The FSA predicts – and clearly
hopes – that the number of firms
seeking authorisation on this basis
will be “few” in number and warns
that increased regulatory costs may
be a deterrent. However, it also
states that such authorisation
should be subject to “less
burdensome” regulatory
requirements (probably excluding
the need for a financial services
qualification).
A curious consequence of
including among the examples of
non-mainstream business
situations in which firms act as a
conduit for third parties’ advice and
arrangements is that by virtue of
the Treasury’s third criterion
mentioned above, firms acting in
this way would be prevented from
receiving any remuneration from
the third party for their efforts. By
contrast, if they limited themselves
to referring clients to third parties
and had no further involvement in
the advice and arrangements, this
would appear to fall outside the
definition of investment business
altogether, and cease to be subject
to this condition (such referrals
would, however, encounter a
different problem, in that under the
ruling of the VAT Tribunal in the
1998 case of Cheshire Trafford,
commissions shared by authorised
persons with introducers will be
subject to VAT if the introducer has
not participated in making the
exempt arrangements).
CP 30 therefore opens up the
disappointing possibility that there
could in future be four levels at
which law firms might be involved
in financial services:
1. As a mere introducer of
business to third parties, outside
the legislation
2. As an unauthorised provider of
non-mainstream services
3. As an authorised provider of
non-mainstream services
4. As an authorised provider of
mainstream services.
Limiting unauthorised
professionals’ involvement with
authorised third parties to simple
introductions would go a long way
to achieving the simplicity of a
regulated/ unregulated dichotomy,
which was the original objective of
both FSA and Treasury.
Mainstream:
the specifics
For firms conducting mainstream
business, the principal concern has
been the possible imposition of
capital adequacy requirements.
These would impact unfairly on
law firms for two reasons: first,
because the requirements would be
determined by reference to the
revenue generated by the firm as a
whole (not just from financial
services); and secondly, because the
quantum would be increased to
take account of the fact that
solicitors (unlike financial advisers)
invariably hold client money.
In the event, the FSA appears to
have been influenced favourably
by the value of the other client
protections offered by law firms,
and states that it does not plan to
introduce a full financial resources
regime, but rather to require firms
to submit to a basic solvency test,
possibly by demonstrating the
ability to meet their debts as they
fall due. However, the possibility is
mooted of also requiring firms to
demonstrate periodically that
positive net assets are being
maintained at all times, which
would necessitate a decision as to
whether partners’ personal assets
should be brought into account.
CP 30 records that suggestions
have been made to the FSA that
firms which provide discretionary
portfolio management services
should be subject to the same
expenditure-based requirements as
apply to members of IMRO, but
indicates that it could be persuaded
that this would be inappropriate at
the present time.
Compensation and indemnity
schemes have also come under
scrutiny. As regards compensation,
the FSA notes that investment
business claims on the RPBs’
professional schemes have been
low, and states that it is inclined to
accept the recommendation of the
Law Societies that the profession
should continue to operate its own
schemes and be excluded from the
Financial Services and Markets
Compensation Scheme. As regards
indemnity, the FSA has concluded
that it should limit itself to
determining that the structure of
the cover provided is appropriate to
the activities to be regulated by the
FSA.
The Law Societies’ lobbying has
also borne fruit in relation to
accounts rules. The FSA has been
persuaded that the Solicitors’
Accounts Rules provide client
protection at least equivalent to the
FSA’s own similar rules, and that
they should continue to be the only
such rules to which firms
conducting mainstream investment
business should be subject.
There is, however, little that can
be done to avoid the increased cost
of FSA regulation, and CP 30
contemplates that the cost of
authorisation might rise to similar
levels to those already applicable to
members of the SROs, where the
charge will usually exceed £1,000
pa “for even a smaller firm”.
Solicitors involved in mainstream
investment business will also be
subject to the new Financial
Services Ombudsman Scheme,
under which enforceable money
awards can be made against firms
by disgruntled clients. It may be a
small comfort that the scheme will
be run by a solicitor.
‘
HE
Financial Services
Authority’s long-awaited
Consultation Paper 30, on
the future regulation of
professional firms, finally
saw the light of day in late October.
Much of the contents had been
widely anticipated. As from a date
which has yet to be determined in
the second half of the year 2000
(referred to as “N2”), the FSA will
become the sole financial services
regulator and the Recognised
Professional Bodies (“RPBs”),
including the Law Societies, will
lose their authority to regulate the
financial services provided by their
member firms. The FSA will
therefore become the sole arbiter of
standards of qualification and
practice, though responsibility for
monitoring may be contracted back
to individual RPBs.
‘
Small firms will bear
the main impact of
FSA proposals, says
IAN MUIRHEAD, who
discusses here the
implications of
Consultation Paper 30
Influenced by value of other client
protections offered
Responding to CP 30
The FSA has circulated copies of
CP 30 to all firms and invites
comments from solicitors by no
later than 14 January 2000. Firms
are encouraged to take full
advantage of this opportunity. Past
experience suggests that volume of
response can in itself be persuasive.
There are those whose impulse is to
fight the very idea that a new
regulator should seek to overturn
what is arguably a perfectly
satisfactory system and to impose
in its stead one designed to
eradicate abuses of which the
profession has been innocent.
However, unless the wild card of
regulatory arbitrage can be played challenging the constitutional
authority of the FSA to exercise its
authority in post-devolution
Scotland – this battle would appear
already to have been lost.
Others prefer to swim with the
tide; to recognise the benefits of
improved standards of competence
and control and to seek to minimise
the financial impact on firms’
ability to continue providing the
invaluable service which only
solicitors are able to offer to their
clients, as men and women of
affairs: a service which will be
further enhanced when the
profession embraces the
opportunity to make solicitors the
centre of new multi-professional
groupings, by adopting the concept
of the MDP.
Firms which have the resource
and the will to provide a seriously
professional financial service
should be able to take the changes
in their stride. The main impact of
the FSA’s proposals will be on small
firms, some of which may be
obliged to think in terms of using
the financial services agencies of
their larger brethren or possibly
outsourcing to a pooled solicitors’
financial services joint venture,
along the lines of the SPCs.
The overriding concern is that the
new regime should not make it
necessary for law firms to ringfence and segregate financial
services activities from the tax and
other legal services to which they
are complementary. The pursuit of
regulatory tidiness must not be
permitted to prevail over the
interests of the client.
Ian Muirhead is Managing
Director of Solicitors for
Independent Financial Advice
LOSS OF CHANCE
LOSS OF CHANCE
Quantifying lost chances
N
ALISON GRANT looks at examples of loss
of chance cases arising out of solicitors’
negligence and assesses the courts’
approach to evaluating the loss
right, she should be compensated
for it.
Kitchen has been followed in
Scotland and was cited by Lord
Avonside in Yeoman’s Executrix
v Ferries 1967 SLT 332. In this
case an injured employee who
fell off a ladder sued his solicitor
who had failed to raise
proceedings against the
employers timeously. Although
Lord Avonside held that liability
had not been established against
the employer, as the employee
would not have used safety
precautions even had they been
provided, he went on to make an
award in favour of the pursuer in
respect of his lost chance to win.
It is accepted that a client is
entitled to sue his solicitor in
either contract or delict and
normally in practice a claim
proceeds under both heads. In
Kyle v P & J Stormonth Darling
1994 SLT 191 the defender
solicitors had failed to comply
with a rule of court and an appeal
to the Court of Session was held
to be abandoned. It was argued
on behalf of the defender
solicitors that the loss of the right
to pursue the appeal was not a
legal wrong. However, the Inner
House held that losing the right
to proceed with the appeal was
Lost chance was a
valuable right to be
compensated for
‘
solicitors’ negligence, the client
has lost the chance to either bring
or defend proceedings. In an
earlier English case, Kitchen v
R o y a l A i r f o rc e A s s o c i a t i o n
[1958] 2 All ER 241 (a case based
on breach of contract) a solicitor
failed to issue a writ within the
limitation period. The plaintiff’s
husband, who had been at home
on leave, had been electrocuted
and died in the kitchen of his
house. The plaintiff alleged that
the death was caused due to poor
wiring carried out by the local
electricity company. The plaintiff
had consulted her husband’s
employers, Royal Air Force, who
had referred her case to solicitors
who thereafter allowed the time
for proceedings to be raised to
run out. The plaintiff sued her
husband’s employers and the
solicitors for damages as she was
unable to pursue her claim. There
was no doubt but that the loss
was caused by the solicitors’
negligence and the only
argument related to
quantification of her claim.
Although it was argued on behalf
of the solicitors that the plaintiff
may not have won her case, and
may therefore have lost nothing,
the court held that she had lost a
chance and, as this was a valuable
sufficient to constitute a legal
right. Lord McCluskey, issuing
the Opinion confirmed Lord
Avonside’s Opinion in Yeoman’s
Executrix v Ferries that in a
question with a negligent
solicitor the court has to look at
the value of the lost chance to
make a claim and that “chance” is
synonymous with “opportunity”
or “prospect”. Kyle is authority
for the proposition that a pursuer
can advance a claim providing
that it has an ascertainable value,
even although the solicitor’s
negligence has not caused a
pursuer to lose a claim, but
instead has caused the pursuer to
lose the right to advance his
claim. By comparison, in an
earlier Scottish case Siraj – Eldin
v Campbell, Middleton, Burness
& Dickson 1988 SC 204 an
offshore engineer who instructed
his solicitor to pursue an
application for unfair dismissal
was unsuccessful in his
negligence claim against his
solicitors. He had been dismissed
for bringing alcohol onto an
offshore rig. The Inner House
took the view that the employers
would not have settled with the
employee and that an industrial
tribunal would have refused his
application.
How, then, does the court
quantify the loss of a chance?
There have been few reported
Scottish cases dealing with the
evaluation of the loss of a chance.
Where the client has lost the
chance to bring or defend
proceedings then a practice has
emerged whereby damages are
assessed according to a
hypothesis and then scaled down
according to the probability that
the hypothesis is correct. In such
cases there is a mistaken belief
that the solicitors defending a
claim step into the shoes of the
original defender who is, of
course, not a party to the
solicitor’s negligence action but
who nonetheless may be called to
give evidence. In such cases it is
often necessary for the court to
assess the notional date of proof.
If the claim relates to a personal
injuries action then it is the
figure appropriate as at the
notional date of proof that is
relevant and not the figure which
prevails at the date of the
negligence action. This follows
the approach adopted in Kitchen,
where the plaintiff was awarded
two thirds of the value of the
original claim representing the
chance that her claim would have
been successful.
It is often necessary for the
court to speculate as to what
would have happened had the
negligent solicitor properly
discharged his duty. The court
has to compare the position of
the pursuer following the
solicitors’ negligence with what
his or her position would have
been had there been no
negligence. While what has
actually happened may be fairly
easy to prove, what would or
might have happened in other
circumstances is a different
matter. What if the agricultural
tenant referred to previously had
entered into conditional missives
prior to his death with a building
company in respect of the
proposed development of part of
the farm lands subject to
planning permission being
granted? And how would the
court actually assess the loss of a
chance of his successors if, at the
time of proof, planning
permission – although still not
granted – was likely to be granted
at some indefinite point in the
future? In this situation the court
has to consider evaluation of the
chance on the basis that “but for”
the solicitors’ negligence, a third
party such as the planning
authority in this example would
have acted differently.
The mid-1990’s resulted in
several reported English cases
which dealt with the evaluation
of a chance on the basis that “but
for” the solicitors’ negligence, a
third party would have acted
differently. Allied Maples Group
Ltd v Simmons & Simmons
[1995] IWLR 1602 (CA) was a
case involving a conveyancing
transaction which went wrong.
The defendant solicitors were
acting in a takeover of a business
but due to their negligence the
‘
in a normal way. The defendants
were unsuccessful in their
attempt to argue that for a lost
chance to be “real or significant”
it must be greater than 50%.
The decision in Allied Maples
was followed in Stovold v
Barlows [1996] IPNLR 91 where
a solicitor acting for a vendor
failed to send documents to a
purchaser resulting in the
plaintiff losing his chance to sell
property at a higher price.
Interestingly, the deeds had been
sent by DX when the purchaser’s
solicitors were not on DX – a
salutary lesson to us all!
However, damages in this case
were reduced by 50% as the
court held that the purchaser
‘
EGLIGENCE claims
against solicitors
continue and will
continue. There may be a
perception that lost
chance cases or what some would
call “loss of opportunity” claims
are a recent development.
However, it has long been the law
of Scotland that damages can be
awarded for the loss of a chance.
What requires to be
distinguished is the loss of a
chance which, in itself, is a legal
right – for example, the chance to
pursue or defend a court action –
and the chance of achieving some
other benefit which may be too
speculative to be taken into
account by the courts. This article
attempts to look briefly at some
practical examples of loss of
chance cases which have arisen,
or may arise, out of solicitors’
negligence, and assesses the
courts’ current approach at
evaluating the loss of a chance,
with particular reference to
Scottish cases.
There are a wide variety of
situations which may give rise to
a loss of chance. As a result of an
oversight by a solicitor a client
may be unable to proceed with
the purchase of heritable
property. Erroneous advice may
be given by a solicitor to his
client and a property purchase
may prove to be less valuable
than was assumed at the date of
purchase. A solicitor may fail to
timeously assign an interest in an
agricultural tenancy following
the death of a tenant, thus
resulting in the landlord evicting
the tenant’s successors from the
farm. Numerous claims have
arisen in England under Part II of
the Landlord & Tenant Act 1954
where a tenant’s solicitor fails to
give notice or issue proceedings
within specified time limits thus
leading to forfeiture of the right
to a renewal of the tenancy.
Most commonly, courts have
been required to evaluate the loss
of a chance where, through
What has happened is easy
to prove, what might happen
is speculative
p l a i n t i f f s, w h o w e r e c a r p e t
retailers, were left with large
liabilities accrued by a third
party. The plaintiffs alleged that
had the defendant solicitors
alerted the plaintiffs to the
potential liabilities, they would
have sought an indemnity from
the vendor of the property. It was
argued on behalf of the defendant
solicitors that even if they had
alerted the plaintiffs there was no
guarantee that the vendor would
have given the indemnity
sought. The plaintiffs proved to
the satisfaction of the court that
had the defendant solicitors told
the plaintiffs of the potential
liabilities, they would have
s o u g h t a n i n d e m n i t y. T h e
plaintiffs would therefore have
had a chance of indemnifying
themselves against the liabilities.
As the plaintiffs had lost a chance
which was caused by the
defendant solicitors it was open
to the court to assess the chance
may have bought other property
even if the documents had
arrived on time.
The case of First Interstate Bank
of California v Cohen Arnold &
Co [1996] PNLR 17 was a
negligence case which involved
accountants rather than
solicitors. It is worth a mention
here because the court gave
practical guidance as to how the
monetary value of the loss of a
substantial chance can be valued.
The plaintiff bank had loaned
money to a client of the
defendant accountants, who
negligently overstated the net
w o r t h o f t h e i r c l i e n t s. T h e
plaintiff bank had been concerned
about the amount of the loan
outstanding. Relying on the
representations made by the
d e f e n d a n t a c c o u n t a n t s, t h e
plaintiff bank delayed in calling
in the loan and thereafter
marketing the property for sale.
The price ultimately obtained for
the property was £1.4 million
whereas the plaintiff bank
contended that had it not been
for the misrepresentation they
could have sold it for £3 million.
The Court of Appeal held that the
loss of a real or substantial, as
opposed to a speculative chance,
was a loss which the law of tort
could and would recognise. On
the facts of that case, the court
valued the chance at 66.66% on
the assumption that “but for” the
negligence, the property would
actually have been sold for
66.66% of £3 million. First
Interstate relied on the Allied
Maples insistence that damages
for a lost chance are only
recoverable if the lost chance is
real or significant.
There is a growing tendency for
courts in solicitor negligence
cases to favour the pursuer when
considering what would have
happened if the solicitor had
properly performed his or her
duty. Although lost chance cases
may occur most frequently in
respect of solicitors’ negligence,
they can also arise in other
situations and should therefore
be borne in mind when
representing any client who has
sustained loss or damage, perhaps
most frequently where medical
negligence is involved and where
there is a loss of a chance of
recovery of health by failure to
treat adequately or timeously.
Although a solicitor’s negligence
may not have actually caused a
pursuer to lose his claim, the loss
of the right to advance a claim is
sufficient, provided that the claim
is ascertainable. There must be a
loss of a real and substantial
chance. Mere nuisance value will
not be sufficient. As claims
against solicitors continue and
are unlikely to decrease as we
enter the 21st century, it is likely
that there will be more reported
decisions on this subject in the
near future.
Alison Grant is a Litigation
Assistant with Biggart Baillie
INTERVIEW
INTERVIEW
THE INTERVIEW
Alan Ramage
In this era of
electronic business we
must ensure we meet
the profession’s
requirements, says
Alan Ramage, Keeper
of the Registers of
Scotland. Here he
discusses his plans for
the future with ROGER
MACKENZIE
‘
how does he view the rather
archaic sounding role of “Keeper”?
“We can be seen as a repository
for title deeds, but that gives a
p a s s i v e i m p r e s s i o n . We s e e
ourselves as part of the fabric of
the legal process of conveyancing
i n t e r- a c t i n g w i t h t h e l e g a l
profession and others on a daily
basis.”
Nevertheless Alan Ramage is
conscious that the public is either
often unaware of the Registers’
existence or confuses them with
the Register of Births, Marriages
and Deaths. As part of the process
of increasing his profile, the
Agency has devised a programme
of events designed to bring it
closer to its customers and the
public.
“Registers of Scotland has for a
long time now had a good
relationship with members of the
A good relationship with members of
the legal profession and we are
building on that tradition
accessible and this can reveal
hitherto unsuspected errors or
omissions. In linking the old
registers with the new we bring to
light old errors and omissions and
perhaps uncover new ones. We
have responded by introducing a
quality programme and also set up
a Data Integrity Unit to make error
reporting and error correction
more effective. I am aware that the
accuracy of records is a key issue
and we are taking the question of
quality seriously.”
Having worked his way from an
administrative officer up though
the ranks of the Executive Agency,
via various roles including as a
legal examiner, manager, then
finance and personnel director,
legal profession and we are
building on that tradition. We have
developed a comprehensive market
research strategy which will enable
us to identify consumers’ views on
the range and quality of our
services and their views on the
Agency overall on an ongoing
basis.
“From our surveys it is clear that
a key concern of practitioners is
the time taken to process subjects
registered in the Land Register for
the first time. This is a labour
intensive process and we are
looking at ways of improving this.
“One pleasing output from the
outcome of the focus groups is that
members of the legal profession
still appreciate the ‘face to face’
communications which they get by
speaking directly to staff at the
Agency.
“This is possibly a reaction to so
many organisations answering
enquiries by a series of
disembodied voices so we will be
continuing to engage our
customers directly either on a dayto-day basis as part of our normal
operations or by engaging them in
our focus and user groups.
“We have recently opened a new
web site (www.ros.gov.uk) where
solicitors will be able to get much
more information about the
Agency and be able to express
their views about any aspects of
the Agency’s operations. We will
shortly be giving solicitors a free
copy of a CD-ROM on which are
contained all application forms
which will enable them to move
away from paper forms. This, with
the inclusion of mandatory fields,
will also improve accuracy.”
Alan Ramage and his colleagues
have detected few negative vibes
from the legal profession about
Automated Registration of Title to
land. “From our surveys they
welcome it. The feedback we have
is that there are some concerns
with automation, in that the
Registers will be doing the
solicitor’s job. In fact it will cut
costs and remove bureaucracy. At
the moment between 20 and 30 %
of applications in the Land
Register can be sent back, resulting
in delay in the registration of title,
but with automation the reduction
in paper handling will result in a
better service.”
The Agency has also been
engaging solicitors in the
development of e-conveyancing
and has come up with a proof of
model concept in conjunction with
Thorntons of Dundee. The
message from the Agency is that
while this is a little way off, it is
interesting to note that in England
and Wales, HM Land Registry
already has a pilot study up and
running whereby some building
societies can discharge mortgages
electronically.
Concerns remain about the
security aspect electronic
transactions and this will be a key
consideration in developing the
process. Then there is the cost
element that will have to be borne
by some firms whose IT
infrastructure may not be
advanced enough at present to
allow access to Registers Direct
and other electronic services.
“Access to Registers Direct will be
by way of standard Internet webbrowser technology. Similarly
Automated Registration of Title to
Land will be built to match the IT
environment which will be in place
in most modern legal practices.”
Such sentiments betray the fact
that Alan Ramage is another
devotee of Richard Susskind’s
vision of the future delivery of
legal services. “I think it is
important that I take a holistic
view of how the Agency is
operating and how it has to operate
in the future. It is only by taking
this view that we can plan for the
future. At the Society’s 50th
Anniversary Conference I
attended a session by Richard
Susskind and was impressed by his
model for looking at what he called
the “knowledge business” in which
he said the legal profession and, by
extension, agencies like ours which
interface with the legal profession,
are engaged.
“I see Registers of Scotland as
being involved in the knowledge
business and I think Susskind’s
model sits very well with how we
are trying to operate in the next
century.
“IT does give us the power to
revolutionise the way in which we
deliver services and we see
Registers Direct as being our main
service delivery vehicle in respect
of information held in the
Registers.”
Is there a danger that digital
conveyancing will make
conveyancing transactions so
straightforward as to either drive
down fees or indeed negate the
need for the level of expertise
offered by a solicitor ?
“My own view is that digital
conveyancing will reduce
registration fees but registration is
the end of a process which involves
most people in the biggest
purchase of their lives. I cannot see
that this can be done without
professional input.”
The Keeper is excited about the
future of an organisation which
employs 1,200 people and has a
turnover of £43 million.
“We must ensure we meet the
profession’s requirements in this
era of electronic business. I am
convinced that solicitors will soon
be able to give effect to
transactions electronically without
the intervention of Agency staff in
cases where it is a straightforward
transfer of land and the subjects
are already registered in the Land
Register.
“We are committed to playing
our part in the Government’s aim
of achieving “joined-up
government” by working with
others in post-devolution Scotland
to provide better, more coordinated electronic access to geospatial information.”
‘
W
Survey map turned out to be an
equally ambitious undertaking.
“Not all Title Plans consist of a
simple red edged rectangle, many
show rights and common
servitudes and the plans for more
complex titles can come in a
myriad of colours, tintings and
hatchings reflecting various rights
and burdens. ”
The Keeper is as disappointed
and frustrated as customers with
the delays in introducing the
Registers Direct service. However
he is convinced that, despite the
difficulties which are in the process
of being resolved, customers old
and new will see great benefits in
being able to access directly
information held on the registers.
The digitising process has in the
meantime brought a sharper focus
to be bear on accuracy. “Obviously
a digitised record is more readily
‘
ITH the long-awaited
arrival of the first phase
of Registers Direct, now
set for early in the new
year, the Registers of
Scotland will truly herald the
onset of the information age to
conveyancing transactions.
If the inevitable culmination of
this, electronic conveyancing,
frightens some firms, they would
probably receive a sympathetic
hearing from the Keeper of the
Registers, Alan Ramage. Having
accumulated 38 years “man and
boy” within the organisation, his
time as Keeper has coincided with
the monumental process of
digitising the registers.
“Without doubt the greatest
change has been the digitising of
our registers, I would suggest that
this has been a greater step change
than the one which saw the
replacement of engrossing clerks
with typists and the introduction
of xerography earlier this century.
“The digitising of our registers
was completed a couple of years
ago, but even that short distance in
time has a tendency to minimise
the scale of what was involved.”
The job of imaging nine million
pages of search sheets to digitise
the Sasine Register was “a
tremendous task”, and says Alan
Ramage, “in the Land Register
while the scale was different the
complexities were greater.
“The textual elements were held
on a mainframe computer. While
this enabled basic electronic
searching we had to move to a
more modern format and
‘translate’ these records from our
mainframe computer to a modern
client-server environment to
improve ease of access and to
provide greater functionality”.
Matching half a million paper
title plans with the most up-todate version of the Ordnance
IT does give us the power to
revolutionise the way in which we
deliver services
S C O T T I S H PA R L I A M E N T
PROFESSIONAL BRIEFING
Around the Houses
HOLYROOD
AS parliamentary life on the hill
settles into a routine,
representatives of the Society have
continued to give evidence to the
Justice and Home Affairs
Committee and the Social
Inclusion Committee on various
Bills. Adrian Ward, Convenor of
the Mental Health and Disability
Committee, gave evidence to the
Justice and Home Affairs
Committee on the Adults with
Incapacity (Scotland) Bill. Robert
Rennie of the Society’s
Conveyancing Committee gave
evidence to the same Committee
on the Abolition of Feudal Reform
etc (Scotland) Bill (the Abolition of
Feudal Tenure (Scotland) Bill
Working Party are looking at the
detail of the Bill and will be
proposing amendments to it).
Members of the Consumer Law
Committee gave evidence to the
Social Inclusion Committee on the
Abolition of Poindings and
Warrant Sales Bill. Discussions are
also continuing between the Legal
Aid Committee and the
Government on the Criminal Legal
Aid (Fixed Payments) Regulations
1999.
The Privacy Committee will be
responding to “An Open Scotland”,
the Freedom of Information
Consultation paper published by
the Scottish Executive in
N o v e m b e r. T h e C o n s u l t a t i o n
examines proposals to legislate for
the right of access to information
held by public authorities such as
the NHS, local authorities, schools
and the police. A copy of the
consultation paper is available from
the Scottish Executive website at:
http://www.scotland.gov.uk . Frank
Johnstone is the Convenor and
Michael Clancy is the Secretary of
the Committee.
The Contaminated Land Working
Party, which is convened by
Kenneth Ross, with Linsey Lewin
as Secretary, is considering the
Scottish Executive proposals on the
identification and remediation of
Contaminated Land.
WESTMINSTER
On 7th November, the Queen’s
Speech opened the gates to a period
The Society continues to be
busy making representations
at Holyrood, Westminster
and Brussels
of intense UK parliamentary
activity. At least 28 Bills are
scheduled to be introduced in the
new season. Many will have far
reaching effects on the Scottish
legal system, particularly the
Financial Services and Markets Bill,
the Electronic Communications
Bill, the Freedom of Information
Bill, the Limited Liability
Partnership Bill, the
Representation of the People Bill
and Bills which will affect the
interception of communications,
terrorism and racial discrimination.
The Committees and
representatives of the Society will
monitor the progress on the Bills,
responding to consultations and
proposing amendments agreed by
the relevant Committees.
The Financial Services and
Markets Bill will provide a new
framework for all financial services
providers. David Cullen, the
Director of Financial Services
Regulation at the Society, wrote to
all Investment Business
Compliance Partners in October
and outlined the work of the
Society in this area to date as well
as the future action to be taken.
Since the letter was sent out to the
profession discussions with the
Treasury have continued. The
future regime for firms who carry
out investment business have still
not been finalised. For any further
information on how the Bill will
affect you, please contact David
Cullen at the Society.
The Electronic Communications
Bill will facilitate e-commerce and
the encryption of e-mail so that
information sent on the Internet
will be confidential and secure. This
will have a major impact on the
profession as e-mail transactions
become commonplace whether
they
involve
conveyancing,
corporate transactions or general
correspondence. The Society will
continue to urge the profession to
take advantage of the opportunities
presented by this technology and
take the boundaries of this type of
transaction further. Gerry Sinclair
is Convenor of the ElectronicCommerce Working Party and
Sarah Fleming is the Secretary.
The Limited Liability Partnership
Bill, which will create the
possibility for limited liability legal
partnerships, is supported by the
Society. Its proposals will be
carefully examined by the
Consumer and Company Law
Committees. Relevant comments
will be made on the Bill which
could greatly assist solicitors in
partnership whilst ensuring that
client protections remain at the
same high standards.
BRUSSELS
The Society’s Brussels Office
continues to monitor the work of
the European institutions and
represent members’ views. The
European section of The Journal
details the developments over the
past month. The Brussels Agenda,
which is available to any members
of the Society upon request, will
also give an update on the work of
the Brussels Office. If you would
like any additional information
then you should call Sarah Fleming
at the Society.
RISK MANAGEMENT
PROFESSIONAL BRIEFING
Round-up of 1999
HE January issue of this
page in 1999 considered
aspects of the cover
provided by the Master
Policy.
While the cover is intended to be
wide enough to ensure protection
for all activities “customarily”
undertaken by solicitors, there are
areas where practitioners should be
alert to cover limitations and to the
importance of controlling risks.
Foreign work/advice – the
Master Policy does extend to cover
situations in which advice is given
under the law of a foreign
jurisdiction provided the person
doing the work is “appropriately
qualified” to do so. “Appropriately
qualified” in this context means
competent in the area of law or
practice. It doesn’t necessarily
mean having a formal qualification
and it doesn’t mean the individual
needs to be an expert.
Year 2000 – although the Master
Policy provides cover for claims
arising out of “Year 2000” or
“millennium bug” problems, it
shouldn’t be assumed that all
insurance policies do so. If advising
on insurance arrangements, do not
assume that the absence of any
specific exclusions means that
cover is necessarily provided.
Instructing other professionals
– this involves both a risk
management benefit and, potentially,
a risk management challenge.
Engaging another firm can bring
the benefits of additional resources
and access to expertise, however
consideration needs to be given to
who should/will be liable to the
client, or any interested third party,
in the event of an error or omission
on the part of either firm. Clear
terms of engagament are crucial.
When passing work to local
agents you need to keep in touch to
ensure matters are being
progressed satisfactorily and
shouldn’t assume that you have
been relieved of responsibility to
your clients because of the
involvement of the local agent.
Limiting liability – it is not
universally understood that
solicitors are entitled, subject to
certain restrictions, to limit their
liability to clients contractually.
T
In this last issue of the year, ALISTAIR SIM
reviews briefly the risk management issues
considered in the preceding eleven issues
(when it becomes available) and
producing search reports in
connection with property
transactions will be regarded as
falling within the scope of Master
Policy cover, there are risks in
using the facility. What are the
risks? What could go wrong? These
matters were addressed in the
February issue.
March - Conflict of interest
between borrower and
spouse
Claims regularly arise out of
problems over the enforceability
of lenders’ securities. Some of
these problems arise out of
alleged deficiencies in advice
tendered to the parties or
information reported to the
lender.
The
March
issue
considered the risks and risk
management issues identified by
two English cases concerning
solicitors’ duties where securities
were granted over matrimonial
homes in respect of business
borrowings of one spouse.
April - Causes of claim
This issue commented on
conclusions that can be drawn from
analysing the underlying causes of
alleged errors and omissions that
result in claims against solicitors.
Lack of knowledge of the law
accounts for a relatively small
p r o p o r t i o n o f c l a i m s. O t h e r
“causes” include human error,
client pressure, conflict of interest.
Client pressure featured as a
dominant underlying cause in the
insurers’ analysis and “pressure”
manifested itself in pressure to
achieve settlement on a particular
date and time pressures resulting
in drafting errors. How can clients
and their expectations be managed
effectively in order to reduce the
risk of errors, omissions and
misjudgment? Some practical
suggestions were made in the April
article.
February - REGISTERS
DIRECT
May - Council house
purchases
Although the Master Policy
insurers have confirmed that
conducting searches using the
REGISTERS DIRECT facility
The purchase of council house
properties can give rise to
particular risk issues in cases where
a family member is putting up all
or part of the purchase price. The
risks to be considered and managed
were considered by reference to
two case studies.
June - Year 2000 issues
The June issue featured a number
of fictitious scenarios each
involving a particular risk
associated with the Millennium
Bug. Appropriate precautions and
warnings were suggested. No
claims have been intimated yet
arising out of date recognition
problems.
July - File management
Risk Management is as much
about good housekeeping and good
management practices as it is
about good legal advice. An
important aspect of this is the good
management of files (and
documents) so that, for instance,
every file is readily locatable and
all work is regularly reviewed.
The article suggested how to
address the risks associated with
“skeleton files” by establishing
“no blame transfer” arrangements
and encouraging a “no fear
culture”.
August - Diversification
and specialisation
Developments continue apace in
terms of novel areas of legal
practice and new ways of providing
legal services. Risk issues were
considered in that article but it was
a reader who identified perhaps the
most important risk management
point – framing Engagement
Letters very carefully.
September – Foreign bank
drafts and Y2K issues
Practical risks of using bank
drafts for payment of
beneficiaries/payees abroad were
considered in September.
Year 2000 issues were again
considered and the part that
carefully framed engagement
letters have to play in helping to
ensure
that
the
client’s
expectations are managed properly
and,
specifically,
that
no
responsibility is accepted for
systems advice.
October - Additional
benefits of risk
management
The October issue returned to the
link between risk management and
management generally.
If the benefits of good
management practices include
satisfied clients and enhanced
efficiency and profitability, the
same can be said for risk
management practices. Systems
and procedures that help to avoid
client dissatisfaction and claims
also enhance efficiency etc.
This issue also contained a
warning to be quite sure about the
scope of Company searches and the
potential liability involved in
giving advice through the medium
of radio or television appearances
or through newspaper articles.
November - E-mail and
Internet usage risks
All methods of communication
carry risks, however there are
certain risks which are peculiar to
the use of e-mail. The November
article reproduced an article by Liz
McRobb of Shepherd &
Wedderburn on risks associated
with e-mail and the Internet first
published in The Scotsman of 18
October 1999.
Looking forward to 2000
The risks associated with the
Millennium Bug have featured
regularly in this page. Let’s hope
that the potential problems do not
materialise. In the coming months,
this page will feature the potential
benefits of limited liability
partnerships; the risks for solicitors
involved in commercial and
property work in relation to
contaminated land and further risk
issues relating to security work.
Alistair Sim is Associate
Director at Marsh UK Limited
The information/advice in this
page is (a) advice on practical Risk
Management and not on legal
issues and (b) is necessarily of a
generalised nature. It is not specific
to any practice or to any individual,
nor should it be relied on as stating
the correct legal position.
C R I M I N A L L AW
PROFESSIONAL BRIEFING
C R I M I N A L L AW
PROFESSIONAL BRIEFING
Bread and butter matters
SHERIFF ANDREW LOTHIAN, while accepting
that all our practices are under the Euroglare, and human rights legislation is now at
the heart of what we do, looks at decisions
of more general interest
W
public hearing within a
reasonable time. One of the
interesting things about the
court’s analysis of the situation
is the ruling that delay has to be
considered separately from any
question of prejudice caused
thereby: we have accordingly
moved away from the position
when there was a sort of three
step test of whether there has
been delay, whether it was
unjustified and whether there
had been prejudice. Do not miss
this one if you have a client
facing trial a considerable time
after the date of the offence. The
second deals with two matters:
the first ground of appeal related
to the latitude taken in the
indictment “between 1st
November 1994 and 27th
November 1994” – which it was
argued, unsuccessfully, infringes
the right granted by subsection
6(1)(a) of the Convention to full
details of the charge one faces.
The second, also unsuccessful,
related to delay and will be of
interest to those whose clients
have also become involved in
Children’s Hearing proceedings
in respect of the same factual
situation.
A consideration of the
foregoing cases will make it
perfectly plain that the
Convention is not an option even
if you think that it is pretty
difficult to apply principles
devised to stop people like Hitler
and Stalin locking people up
without explanation and
declining to give them a date of
release. The fact is that on
advising a client about a
situation involving a criminal
charge, the first thing that you
should think about is the
‘
On advising a client about a situation
involving a criminal charge, the first
thing that you should think about is the
question of Convention rights
question of Convention rights
and this applies even when our
law and practice has previously
found what you are faced with to
be unobjectionable.
Now to road traffic law. McNee
v Ruxton 1999 GWD 28-1354,
which is actually a case about
offensive weapons, deals in
passing with sec 163 of the Road
Traffic Act 1998, which allows
the police to stop motorists for a
check on roadworthiness under
sec.67. The court, observing that
the powers granted under this
Act were very wide, held that
evidence about what was found
in the vehicle in question was
admissible. Thus while we do not
allow stoppages at random, it
does appear that if done for the
purpose of section 67, anything
else criminous that turns up is
fair game. As this would clearly
include drink and driving
matters, it might be best if a clear
power to carry out random stops
with a view to obtaining breath
samples if alcohol was suspected
were granted by statute.
It is remarkable that even at
this distance in time since its
introduction we are still getting
new matters raised in connection
with the breathalyser. Here are
four of them. In Wilson v
Webster GWD 1999 27-1300 the
appellant had been required to
give a blood sample because the
dates and times on the Camic
print did not make sense. As the
blood sample turned out to have
been insufficient for analysis, the
Crown relied on the original
Camic readings, there being
nothing wrong with the
machine’s analytic function. This
was held to be in order, the court
observing that if it had been the
blood which was relied on the
prosecution would have failed as
the Camic procedure had been
properly carried out and thus the
blood had been improperly
obtained. Thomson v Ritchie
1999 GWD 31-502 was an appeal
on the basis that police officers
had no reasonable grounds for
administering a breath test.
There had been an anonymous
phone call describing a car with a
driver under the influence.
Shortly thereafter police officers
observed the car stationary and
unoccupied and then saw the
appellant enter it and drive off. It
was unsuccessfully argued that
there had been a material break
between what the caller
described and what the officers
saw and the appeal was refused.
Gallacher v Dick 1999 GWD 321558 was a successful Crown
appeal against a successful
objection before the sheriff in
circumstances where officers
required a blood sample because
they had been told by the
sergeant acting on information
from another officer that the
machine was faulty. It was held
on appeal that on this basis they
could reasonably believe that a
reliable device was not available
and so were entitled to proceed
as they did. Finally Brannigan v
McGlennan 1999 GWD 35-1713
is a rather unusual case in which
the appellant was charged with
failing to provide a breath
sample when the machine gave a
“breath invalid” print-out before
it was realised that it was not
working. The appellant then
refused to give a blood sample.
The original charge was
subsequently dropped. It was
held that the fact that the
appellant had been deprived of
the chance of complying with the
original requirement was not
relevant, the failure to give blood
being procedurally quite
separate.
To be fair, the breathalyser is
not the only old friend still
attracting comment. Breach of
the peace cropped up again in
Grogan v Heywood 1999 GWD
28-1317 in the context of that
not altogether unknown activity,
swearing at the police. While the
success of the appeal turned to a
large extent on the way in which
the case had been stated the case
reminds us of the necessity of
proving at least the possibility of
fear and alarm. It is not
inconceivable that the existence
of the crime may be challenged
on a human rights basis: it is an
odd survival, since it does not
require criminal intent, strictly
speaking, to commit a breach of
the peace it might be said that
the whole concept is too wide for
fairness to the accused. To
introduce a personal note ever
‘
mens rea could be inferred from
the proven facts the law seems to
be settled that this involves
either a deliberate intention or
behaviour carried out in
circumstances where it must have
been obvious that it was likely to
be observed and cause upset.
Where this leaves Lord Walker’s
question I am still not sure.
And so to Moorov, cropping up
again in HM Advocate v Reid
1999 GWD 29 1362. The charge
here was of lewd conduct
towards two girls, each speaking
to what she had said had
happened to her. It is well settled
by now of course that evidence
of two separate acts spoken to by
one witness can allow a jury to
conclude that they were part of a
course of systematically pursued
Moorov must by now, I think, have
been stretched to the limit
since it was present in the appeal
court and heard that crafty judge
Lord Walker chuck a spanner in
the works during an appeal about
shameless indecency by asking
“what would happen if an actress
came on stage with her breasts
all bare and everyone wanted to
see them?”, the subtleties of this
crime have been something of a
puzzle. The appeal court
addressed that matter in the case
of Usai v Russell 1999 GWD 321519, which incidentally
confirms that indecent exposure
is a form of shameless indecency
(although it could be argued that
it had more in common with, and
in fact was, a form of assault). In
the appeal it was argued that
there had to be proof of criminal
intent or at least reckless
indifference to the effect the
appellant’s behaviour might have
on others. The court held that in
the instant case the necessary
cases, but in all conscience one
does wonder just how much
there is in the “ongoing course of
conduct” line when two
examples are enough to establish
it. Moorov must by now, I think,
have been stretched to the limit.
And now for something rather
less familiar, the citizen’s arrest,
which was considered in the case
of Wightman v McFadyen 1999
GWD 27-1267. This was an
appeal on the basis that the
arrest had been an illegal one and
the first point to be clear about is
that contrary to what the sheriff
thought, the court held that an
illegal arrest would taint what
had been done after the police
arrived. The point is an
interesting one for it was not I
think suggested that the actings
of the police, per se, were
objectionable. Be that as it may,
the court differed from the law
as set out in Renton & Brown
and held that while mere
suspicion was not enough to
justify a citizen’s arrest, where
there was what was described as
a moral certainty that a crime
had been committed and that a
particular person had committed
it, then an arrest was justified. It
is accordingly a matter of degree,
although as a matter of public
policy one would assume that it is
to be hoped that there are not too
many citizen’s arrests. One major
criminal, it is recollected, was of
course arrested on the evidence
of, though not actually by, the
Glenrother neighbourhood
watches. But it is quite a step from
that to licensed vigilantes.
Finally, and in something of a
rush, it is worth having a look at
Cullinton v HMA 1999 GWD
28-1314, which looks again at the
question of distress as a
corroborating factor, emphasising
that it is a lack of consent, and no
more than that, which is
involved, a suitable reminder
that that which corroborates
something does not necessarily
corroborate everything.
‘
HILE it is the big
devolution issues that
have been making the
headlines recently, we
do not propose to
discuss them in detail here,
preferring for the moment to
stick largely to bread and butter
matters. However, it is clear that
all of our practices are being
scrutinised in the Euro-glare and
that human rights legislation is
now firmly at the heart rather
than on the periphery of what
we do. However, one cannot
ignore either Starrs v Ruxton or
Thompson v Crowe, both of
which are to be found,
conveniently, in the same issue
of Greens Weekly Digest,
namely no 37 at 1793 and 1790
respectively. The first, which is
the one about temporary sheriffs
and by implication much else
besides, falls into the category of
“if you read only one case this
year”... The second, which
infuses a bolt of electricity into
the Frankenstein’s monster that
is the trial within a trial. Those in
a hurry will be glad to see that
the Lord Justice General has
provided a most useful summary
of what is to be done in various
circumstances. This appears at
the end of his judgment which is
of necessity a lengthy one,
involving as it does a discussion
of and a return to correct
principles.
For those who would like to
have a look at other devolution
issues in action, it may be
sufficient to mention HMA v
Little 1999 GWD 28-1320 and
McLean v HMA 1999 GWD 361732. The first of those deals
with the question of undue delay
which is struck at by article 6 (1),
providing for as it does a fair and
criminal conduct. The argument
in the appeal was that the trial
judge should have directed the
jury that the evidence of one girl
might be sufficient to
corroborate the other but not to
establish the charge spoken to
directly by her. The novel
proposition was rejected by the
appeal court as involving a
logical contradiction, with the
court pointing out that it was
always possible for the jury to
delete part of a charge if they
were not satisfied. The
unsuccessful argument is really
the other side of the occasional
situation in which a jury, faced
with a two-witness Moorov
situation, decides to do what the
court says they should not and
convict on one charge and acquit
on the other. The doctrine has
proved useful to the Crown in
securing convictions over the
years, and not just in sexual
EUROPE
PROFESSIONAL BRIEFING
Freedom to provide services
HE freedom to provide services in
another Member State, as enshrined in
articles 49 and 50 of the EC Treaty
(formerly articles 59 and 60), has formed
one of the fundamental principles of
European Law. Its importance, along with the
right of establishment and the free movement of
workers, has increased as opportunities to work
abroad have become greater and more and more
people take advantage of these opportunities.
Consequently, the rules applying to those taking
advantage of their EU rights in this area have
come under increasing scrutiny. That scrutiny
also extends to the co-existence of the freedom to
provide services with the right of workers to
social protection, an area which is becoming
more and more central to EU law. This interrelationship has recently been examined by the
ECJ.
prosecuted under Belgian criminal law for noncompliance with the obligations imposed by that
legislation. The court suspended proceedings and
referred various questions to the European Court
of Justice in order to ascertain the extent of the
application of the then articles 59 and 60 of the
EC Treaty to this situation. Specifically, the
Court sought to clarify whether articles 59 and
60 permitted national legislation to require an
undertaking based in one Member State and
temporarily carrying out work in another to
maintain documentation conforming to the law
of the host Member State, to pay the minimum
wage stipulated by the host state and to make
contributions to the host Member State’s scheme
for bad weather and loyalty payments for
construction workers.
Workers temporarily deployed
abroad
In its consideration of the case, the ECJ restated
the obligation to eliminate all discrimination on
the grounds of nationality against providers of
services who are established in another Member
State. The Court reiterated that this obligation
applied also to discrimination which arose only
as the result of the application of the same
legislation to both national service providers and
those based in another Member State. The Court
went on to state that even if there is no
harmonisation in the field, the freedom to
provide services may be restricted only by rules
justified by overriding requirements relating to
the public interest. However, such a restriction is
not permissible where the public interest is
safeguarded by the rules to which the provider of
such a service is subject in the Member State
where he is established.
T
The ECJ ruled on 23 November 1999 in the
joined cases of Arblade (C-369/96) and Leloup
(C-376/96) on the obligation of employers who
send their employees to work abroad on a
temporary basis to comply with the Health and
Safety and employment legislation of the host
Member State. In this case, the two companies,
both based in France, carried out works in
connection with the construction of a complex of
silos in Belgium. This involved having workers
on site in Belgium for a number of months
during 1991-1993. During this period, the site
was inspected by the Belgian Social Law
Inspectorate which demanded production of the
various documents which Belgian Law obliges
employers to maintain. Both companies argued
that they were only obliged to conform to French
Law in that respect and they were thereafter
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]
Information is also available from
the Society in Edinburgh from
Sarah Fleming.
Tel: 0131 476 8132 / Fax: 0131 225 4243
Elimination of discrimination
“Public Order”legislation
The Belgian Government argued that the
classification of these rules in Belgium as “public
order legislation” meant that they were exempt
from compliance with Community Law. The ECJ
dismissed that argument. Although the Court
had ruled in a previous case (279/80 Webb) that
the protection of workers did constitute an
overriding reason relating to the public interest it
now explained that considerations of a purely
administrative nature do not justify a derogation
from the principle of freedom to provide services.
The Court then went on to consider whether
the obligations imposed by Belgian legislation
had a restrictive effect on the freedom to provide
services and, if so, whether they were justifiable.
Minimum wage
According to the ECJ, a Member State may
apply legislation for the payment of a minimum
wage to workers deployed only on a temporary
basis within its territory, regardless of the state
in which the employer is established. However,
this principle is limited in its application in that
the obligation may only be imposed by
appropriate means. In this particular case, for
example, criminal prosecutions may be brought
only where the provisions allegedly infringed are
sufficiently clear and precise.
Employers’ contributions
The Court judged that for the payment of
employers’ contributions to be obligatory in the
host Member State the contributions must
confer a social advantage on the workers
concerned. Where essentially the same
protection for the workers exists in the Member
State in which the employer is established, the
employer is, in effect, disadvantaged by having to
make the same payments in the host state and
this may deter them from providing their
services abroad.
Social documentation
The Court noted that, as the two companies
were obliged to keep documentation in France
which was comparable to the documentation
required in Belgium, any additional requirement
by the Belgian authorities constituted a
restriction on the freedom to provide services as
it involved extra expense and administrative
burdens. This restriction, according to the ECJ,
could never be justified by the need to make it
generally easier for the authorities in the host
state to perform their supervisory task. However,
the protection of workers may require that
certain documentation be kept on site for
inspection but it is for the national court to
decide whether that protection could not equally
be afforded by the production within a
reasonable delay of the documentation kept in
the home state or by keeping copies of those
documents on site.
This case considered a particular set of
circumstances involving construction workers
working across the French/Belgian border.
However, the potential for conflict between
national legislation designed to protect workers
and the freedom to provide services exists in all
Member States whose nationals take advantage
of this Treaty freedom or who receives nationals
of other Member States on the same basis.
New Deputy Head at the Society’s Brussels Office
THE Society is happy to welcome Che Odlum to the Law Societies’ Joint Brussels Office.
Che will be starting work at the beginning of January as the Deputy Head of EU and
WTO affairs, replacing June O’Keeffe who was recently promoted to Head of the Office.
Che is presently employed in diplomatic work in Brussels as a staff member of the East
Caribbean States Delegation to the EU.
EUROPE
PROFESSIONAL BRIEFING
A European Public
Prosecutor:
Concept abandoned?
THE European Parliament
adopted a report in the spring of
this year which inter alia called
for the appointment of an
independent European Public
Prosecutor, initially empowered
to take up cases of fraud against
the Community budget and
possibly later enabled to
investigate cases of terrorism,
offences against children,
corruption and drugs trafficking.
The Committee of Independent
Experts, which was appointed to
investigate reform of the
Commission, made a similar
recommendation this
S e p t e m b e r ( h t t p : / / w w w.
europarl.eu.int/experts/en/defa
ult.htm). The Parliament’s
report was discussed at the
Tampere Summit of EU leaders
on 15-16 October. However,
certain Member States
expressed reservations about
the idea of a European Public
Prosecutor and the idea was not
endorsed in the Summit
conclusions (http://europa.
eu.int/council/off/conclu/oct99
/oct99_en.pdf). Instead,
the
p o s t - Ta m p e r e o b j e c t i v e s
include the creation of a
EUROJUST unit, comprised
o f n a t i o n a l p r o s e c u t o rs,
magistrates and police officials,
to facilitate co-ordination
between national prosecuting
authorities. It remains to be
seen whether the idea of a
Public Prosecutor has a future.
For the immediate future,
resources will be concentrated
on EUROJUST. If EUROJUST
fulfils the functions that the
Public Prosecutor would have
had, the idea may be dropped.
French Law
LAWYERS who wish to improve their French and learn some of
the principles of French law can do so at a course being run by the
Law Society. French for Lawyers commences on 11 January 2000
and runs every Tuesday for 10 weeks. The class takes place
between 6.30 and 8.30 pm. For more information contact the
Institut Francais d’Ecosse on 0131-225 5366.
Stop-gap reforms
THERE is a growing imbalance
between the number of cases being
brought before both the European
Court of Justice (ECJ) and the Court
of First Instance (CFI) and the speed
at which the Courts can deliver
judgments. Wide-ranging reforms
are likely to be considered at the
upcoming
intergovernmental
conference, which will probably
take place next year. In the
meantime, the Parliament is being
consulted by the Council on two
reforms of a more modest nature.
The first of these is a proposal to
increase the number of judges in
the CFI from fifteen to twenty-one,
principally
to
assist
with
intellectual
property
cases.
Secondly, it is proposed to extend
the CFI’s competence so that it may
hear actions for annulment brought
by Member States in the areas of
competition law, state aids and
transport policy. At present, all
cases involving Member States
must be heard by the ECJ. The ECJ
would continue to hear appeals
from the CFI in these areas. The
Parliamentary Committee on Legal
Affairs is scheduled to adopt a
report on the proposals at the end of
November. Support for the
proposals is growing in the Council,
although a number of Member
States are particularly concerned
about the inclusion of state aid in
the extension of the CFI’s
competence and others are anxious
about the cost of the reforms.
Unanimity will be required in
Council but no deadline has been
set for reaching agreement
Competition law reforms
AT the end of September, the
European
Parliament’s
Committee on Economic and
Monetary Affairs organised a
public
hearing
on
the
Commission’s White Paper on
modernising competition law
(http://europa.eu.int/comm/dg04
/entente/en/wb_modernisation.p
df). In its White Paper the
Commission proposes that Article
81(3) of the EC Treaty (formerly
Article 85(3)EC) should be given
direct and automatic effect, in
order that it may be enforced by
the national authorities, and that
the need for prior notification of
agreements which may qualify
for exemption should be
abolished. Most speakers at the
hearing were in favour of reform
in some form, but many urged
caution and asked that the best in
the present system be preserved.
There was general concern over
the way in which national
competition authorities and the
Commission would interact
under the proposals. A number of
speakers opposed the abolition of
prior notification of agreements.
Several also questioned whether
the national courts have the
experience and the skills to make
decisions
as
to
whether
agreements fall within the criteria
for exemption under Article
81(3)EC. The Commission will
now consider the views of the
speakers and of those who have
submitted written comments on
the proposal before deciding on
the direction reform should take.
Judicial co-operation in family law
SOLICITORS and others working in
the field of family law can look
forward to greater cross-border
judicial co-operation when the
Commission’s proposed Regulation
(http://europa.eu.int/eurlex/en/com/pdf/1999/en_599PC0220.p
df) revising the so-called Brussels II
Convention comes into force. The
Regulation concerns jurisdiction and
the recognition of judgments in
matrimonial matters and matters of
parental responsibility. Under the
terms of the Regulation, a divorce
granted in one Member State will be
recognised in all Member States,
including those in which there would
not have been grounds for the divorce.
So, too, decisions of the courts of one
Member State on the custody of
children will be valid throughout the
Community. The European Parliament’s
Committee on Citizens’ Rights and
Freedoms recently met to consider a
draft report on the Commission
proposals. The main concern expressed
in the report was that the interests of
children caught in the break-up of a
marriage should be protected. The
Parliament will vote in November on
amendments to the Commission
proposal. Before coming into force, the
Regulation must receive the
unanimous backing of the Member
States.
Framework for
electronic signatures
FOLLOWING the adoption in June of
a Council common position on a
Community framework for electronic
signatures (OJ C243/33 27.08.99)
(http://europa.eu.int/comm/dg15/en
/media/sign/composen.pdf), the
European Parliament is now
considering an amended proposal for
a
Directive
in
this
field
( C O M ( 9 9 ) 0 1 9 5 )
(http://europa.eu.int/comm/dg15/en
/media/sign/signamen.pdf). When
enacted, the Directive will create a
secure framework for electronic
signatures, in terms of both legal
certainty and technical security.
Electronic signatures will be accorded
the same status in law as handwritten signatures. Providers of
certificates guaranteeing the origin of
electronic data will be able to operate
without authorisation, but Member
States may introduce voluntary
schemes
accrediting
certificate
providers that meet certain quality
standards. The European Parliament’s
Legal Affairs Committee has adopted
a
report
detailing
further
amendments it wishes to be made to
the proposal. In particular, it has
removed so-called “closed systems”
from the scope of the Directive. Thus,
in-house intranets and electronic
communications between suppliers
and distributors would not be covered
by the Directive’s provisions. The
Committee’s
report
will
be
considered by a plenary session of the
Parliament when the draft Directive
receives its second reading at the end
of October.
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]
INSTANT PORTRAITS: THE HANDBOOK OF MSPs
by Ann Packard
ANN PACKARD ISBN 0 9536749 0 8 Price £15
THIS is a most
interesting
book, written
Year 2000 Compliance
The lawyer’s guide to surviving the millennium bug
Charles Christian
Law Society Publishing ISBN 1 85328 675 3 Price £19.99
IF any reader
does not know
by now about
the “Year 2000
Problem”...
well ... Good Luck!
By the time you read this
review there will not be
many working days left
before the end of 1999. The
good news in the book is
that “according to some
estimates 60% of all Y2K
problems will arise during
the course of 1999”. One of
the major “problems” of
course has been that all
suppliers have had to
respond to a plethora of
questionnaires, all
different. Many of these
were, as the author puts it
“asking marginally
relevant organisations
completely irrelevant
questions”.
The technical and legal
issues are covered in a clear
and accessible way. The
author’s approach is brisk
and common sense. Check it
and fix it if it is fixable –
throw it out if it is not. Clear
instructions for basic testing
are set down and domestic
appliances are not ignored.
Most of the book is about
prevention. The general
attitude has been that the
best way to deal with the
problem is to sort it
r a t h e r than to wait until
everything has gone wrong
and then argue about it.
There has also been a
pragmatic outlook that with
a deadline fast approaching
time and money would be
better spent in sorting the
problem than in disputes
about who ought to fix it at
the expense of whom. This
has meant that legal issues
that might have been
explored have remained
unexamined by the courts –
so far.
With the coming of the
New Year we will move out
of the preventative and into
the recriminatory phase.
The book will remain
relevant and useful for the
exercise of allocating
responsibility for those
situations (there are bound
to be some) where things
did go wrong. The author
wisely and deliberately
refrains from giving any
pat answers. It is entirely
possible that the courts will
soon have the opportunity
to clarify some of the less
clear areas of the law
relating to computer
programs. We may find out
what difference, if any,
there really is between a
program supplied encoded
on a corporeal moveable
g o o d s, a n d a p r o g r a m
delivered down a cable.
What, in law, exactly is the
relationship between
hardware and its operating
system? What durability
should be expected from a
system with embedded
chips?
If problems do materialise
we shall also find out the
consequences of the giving
of blanket compliance
reassurance even about
matters entirely outwith
the control or first-hand
knowledge of the giver. The
“sample compliance
statement” contained in
Chapter 9 states that “our
ability to supply goods and
services will be unaffected
b y t h e Ye a r 2 0 0 0 d a t e
c h a n g e.” B e w a r e o f t h e
passive voice. What if “we”
are compliant but “our
ability” is affected by Year
2000 problems of
organisations with whom
“we” have no connection?
Our colleagues south of
the Border return to work
on what the author calls
“black Tuesday”. When we
return the next day (black
Wednesday?) we can start
the process of preparing for
the Y10K problem.
James A McLean
and published
by Ann Packard, a former deputy
secretary of the Law Society of
Scotland who worked in the
PQLE department and left the
Society in 1981. If you are
looking for a stocking filler for
any one interested in Scottish
politics or the Scottish
Parliament look no further!
Even Matthew Parris, the
renowned sketch writer of the
Times, has a copy.
The book is intended to provide
information about the Scottish
Parliament and the Scottish
Executive in a way which is
accessible, useful and ultimately
for the benefit of charity. The
following charities will receive a
proportion of the sale proceeds,
Spinal Injuries Scotland, Glenelg
Village Hall Appeal, Glenelg
Mountain Rescue Association
and Shelter Scotland. But apart
from the eleemosynary element
why would one buy this book?
Firstly, the book collects a lot of
useful information about MSPs
and the Scottish Executive. If a
solicitor wishes to advise a client
about a parliamentary route to
relief it is important to know how
to reach an MSP or a member of
the Executive.
Secondly, it provides a readily
available repository of
information about the committee
structure of the Parliament. This
alone will help if representations
need to be made to a committee
on a client’s behalf. However, the
book is not a shortcut to lobbying
expertise and has some serious
drawbacks which could be a trap
for the unwary.
The contents show how useful
the volume can be: there is
information about the
Consultative Steering Group, the
Pa r l i a m e n t a r y B u r e a u , t h e
Scottish Ministers, the Executive
and the Opposition parties, a
record of the opening
ceremonials, and biographies of
the MSPs. There is a set of tables
which attempts to analyse the
data collected from the MSPs in
an accessible way.
The book is misnamed “Instant
Portraits”... it only has one
portrait, that of David Steel, the
Presiding Officer of the
Parliament!
The list of members of the
Scottish Executive includes Dr
Lynda Clark QC, the Advocate
General for Scotland,who is a UK
Law Officer not a member of the
Executive. The list of the
Committees has some defects in
the composition details. For
example, Christine Grahame is
not listed as a member of the
Justice and Home Affairs
Committee.
In the main biography section
Tricia Marwick appears twice...
luckily with the same biography,
and there are a number of stylish
inconsistencies and biographical
details missing in other entries
which could have been supplied
with just a little more research.
An endearing feature of the
text is the liberal (in a non-party
sense) provision of political and
more general quotations. The
selection is sometimes too
d i v e r s e, e. g . j u x t a p o s i n g a
comment from Harold Wilson
with a (less than memorable)
citation from the Scotland
D e v e l o p m e n t D i r e c t o r,
“published by the Civil Service
College”.
Editing this text could not have
been easy but Ann Packard has
done an admirable job. The
material she had to work with
was obviously of variable
completeness, some MSPs had
given lots of detail whereas
others were quite shy. To be able
to produce such a work from a
broad range of material is no
mean feat.
The effort put into this text and
the charitable aspect of its
production will undoubtedly
result in considerable welldeserved sales.
Michael Clancy
Law Society of Scotland
Scottish Parliament Law Review
(Issue 1: September 1999)
THIS is one of a
number of new
publications
emerging in
response to devolution and aimed
at practitioners. Its executive
editor, Iain Mitchell, records his
hope in Issue 1 that it might be
“a light and guide through the
fog of uncertainty that clouds
our future, after this, the greatest
constitutional revolution that
has occurred in Scotland since
1707”. It aims to provide
“practical meat and potatoes
information” on the new
arrangements in an easily
accessible style. Unfortunately,
any drive for accessibility carries
the danger of over-simplification
and it remains to be seen
whether the SPLR can progress
from the first issue’s broad brush
survey to a more detailed and
critical analysis of legislative
initiatives and the developing
case law.
One major difficulty facing the
SPLR is how to narrow its terms
of reference given its apparent
concern with the entirety of
“Scottish Parliament Law”, a
difficulty illustrated by Professor
Alan Miller’s contribution on the
significance of the Human Rights
Act 1998. Although not yet in
force, certain provisions of that
Act are already effective in
Scotland as a consequence of
sections 29 and 57 of the
Scotland Act 1998, which forbids
the Parliament to legislate or the
Executive to act in any way
which would infringe
“Convention rights”.
The problem is that the
development of human rights
jurisprudence by the Scottish
courts may well be worthy of a
distinct law review which places
the Scottish developments in a
wider human rights context. This
same point could no doubt be
made about many other areas of
legislation which might be
treated more appropriately from
the perspective of their subject
matter rather than brought
together under the general
“Scottish umbrella”. There is,
after all, no Westminster
Parliament Law Review. This
“identity crisis” is compounded
by concentration on the Human
Rights Act itself rather than
those parts of the Scotland Act by
which infringements of
Convention rights may be raised
as “devolution issues”.
Of course, it is likely that some
peculiarly “Scottish” practices
will emerge and the SPLR has the
potential to become a useful
source of information for
practitioners who recognise the
importance of keeping abreast of
the activities of the Scottish
Parliament and the state of
legislative play. Nonetheless,
given that the vast amount of
material available “free” from
the Scottish Parliament and
Executive websites, its value will
lie in detailed analysis rather
than the reporting of
p r o c e e d i n g s. W h e t h e r t h a t
analysis can keep pace with the
steady increase in devolved
business is another question.
Christine M. O’Neill
University of Edinburgh
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