Professional briefing

Transcription

Vol 52 No 1 JANUARY 07
THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND
ember
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ne of th
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06
Year 20 hers
al Publis
*Periodic n Scotland
o
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Associa
Seeing through
the rhetoric
Not-so-transparent
Sentencing Bill
Only the beginning
Challenge of the new planning system
Capital start
EMLC and Edinburgh’s
first law centre
Counting
down
Clock now ticking on the (much
improved) Legal Profession
Bill coming into force
ALSO INSIDE: ADOPTION / YOUR NEXT NQ / LIVE LINK EVIDENCE / IN-HOUSE / SIDELINES
For online recruitment, daily news updates and searchable archive, visit www. journalonline.co.uk
Contents Vol 52 No 1 January 2007
www.journalonline.co.uk
Contact
Journal
staff and
contributors
16 Adopting me isn’t much simpler
Regular items
5 Editor
Campaigns past and future
7 President
Success at stage 3
9 Opinion
Malcolm Mackay: service choice
14 People
Firms and lawyers on the move
22 Professional news: Society
(More in the box below)
22 Letters
What if you hate online surveys?
27 Notifications
28 Professional practice
28 “Grow your own assistant”
30 IT: news roundup
32 Risk: crossword quiz
34 Professional briefing
34
36
37
38
40
41
42
Civil court
Employment
Insolvency
Evidence by live link
Discipline Tribunal
Websites
Book review
43 Update
Forthcoming CPD dates
44 In-house
44 COPFS traineeships
45 Pathclearer agreements
46 Property lawyer
46 Promotion agreements
48 Letting to disabled people
49 Survey on the single survey
50 Sidelines
Journal awards, and the regulars
54 Classified
57 Recruitment
PUBLISHERS
The Law Society of Scotland
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President: Ruthven Gemmell
Vice-President: John MacKinnon
Secretary: Douglas Mill
12 Will planning consent still be needed?
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of the Law Society of Scotland are
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application for which should be
made to the publisher. © The Law
Society of Scotland, 2007
ISSN: 0458-8711
18 Home, but for how long?
Features
10 The bill’s final act
16 Better, but no simpler
Drama at stage 3 as the Legal
Profession (Scotland) Bill emerges
improved “across the board”
Kenneth Norrie on two key aspects
of the Adoption and Children
(Scotland) Act
12 Blueprint for the future
18 Mass of contradictions
What needs to be done, and
provided, to make the new Scottish
planning system work properly
Why the Custodial Sentences Bill
fails to achieve the promised clarity
20 Hope for the oppressed
36 pages of legal appointments
15 Age of equality
Total Net
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50 They all love the Journal
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Society news>
Turn to pages 22-25 for the next President,
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practice, and a stirring address to entrants.
Society website: www.lawscot.org.uk.
January 07 theJournal / 3
Editorial
The successful conclusion to the campaign on the Legal
Profession and Legal Aid (Scotland) Bill is being rapidly
followed by the debate on the bill for England & Wales,
with its likely implications for Scotland
From one campaign
to another
Strength in unity
So the final outcome gave some cause
to cheer. The Society, and in particular
those who have lived, breathed and
slept the Legal Profession etc
(Scotland) Bill for most of the past
year, was understandably in upbeat
mode after the Executive gave ground
on a number of key points on the bill’s
final day in parliament.
If the outcome teaches anything, it is
what can be achieved with a sustained,
reasoned campaign backed by a united
body of professionals and directed at
every level of opinion former and
decision maker connected with the
legislative process: if one level looks
like resisting a strong argument, don’t
give up on the others.
Of course there is still major change
in the pipeline, one which although
supported in principle by the Society,
contains in its enacted form several
features capable of weighing heavily on
the profession. The uncertainty over
how the Commission will exercise its
powers of compensation and
supervision, the implications for inhouse lawyers and their employers, and
the overall cost of the new Complaints
Commission remain significant
concerns despite the stage 3
amendments. But compared with the
bill as introduced, the Society is
entitled to claim that it has done a
pretty good job.
Editor
Peter Nicholson
If the outcome
teaches
anything, it is
what can be
achieved with a
sustained,
reasoned
campaign
backed by a
united body of
professionals
and directed at
every level
Eyes turn south
As one battle ends, a new front opens
up as the Legal Services Bill begins its
passage through Westminster. Though
in form a measure solely for England &
Wales, many expect it to impact as
much if not more on the profession in
Scotland as the measure just passed by
Holyrood, hard though it may be for us
to influence its content.
The reasoning goes that once
commercial organisations such as
banks, supermarkets or whoever are
allowed to own and operate legal
practices in competition with private
firms south of the border, one way or
another they will find the means to
extend their reach into Scotland,
and/or pressure for similar legislation
here will become irrestible.
Despite some strong criticism from
the scrutinising parliamentary
committee, in a report produced under
severe constraints of time, the
government seems determined to push
ahead. The bill’s appeal to the
consumer lobby is likely to prevail
against warnings of a threat to
fundamental values of professional
independence (though interestingly it
appears that English firms with
international operations may find
themselves at a disadvantage, as other
jurisdictions insist on traditional forms
of ownership and regulation).
It is also well known that there are
those within the profession, here as in
England, keen to see the new
legislation in place, due to advantages
in ownership or method of operation
they see it as bringing. As Malcolm
Mackay suggests on the Opinion page,
all private practitioners will have to be
alert to the possible implications of the
new ways of doing business and
reassess how they can run and market
their own practices so as to compete.
Status, recognition…
While we are still in the awards season,
forgive us for blowing our own
trumpets in recording the Journal’s
double success at the Scottish
Magazine Awards (page 50; also the
President’s kind remarks on the next
page). Ever since the new design went
live last June, your feedback on your
magazine has been consistently
positive, and it is especially pleasing to
see the Journal’s strengths now
recognised in competition with titles
from very different sectors, by a panel
of judges whose experience lies in
publishing rather than law. Who said
all legal periodicals were dry as dust?
To those of you in the running for
the imminent Scottish Legal Awards,
congratulations on your shortlisting
and may the best entries win. It’s not
an experience to be missed when your
name comes out of the envelope!
May the coming year bring good
things for you, whatever form they
take.
President
The amendments won to the Legal Profession
Bill are tribute to the efforts made by the
Society’s team and all solicitors who took part
in the campaign to secure positive change
Strength of purpose
President
Ruthven
Gemmell
It would not
have been
possible to
convey the
strength of
feeling among
the profession,
had it not been
for the efforts
of individual
practitioners
After a lengthy consultation and
legislative process, the Legal Profession
and Legal Aid (Scotland) Bill was given
final approval in the Scottish
Parliament last month – but only after a
number of key amendments during a
well-informed stage 3 debate.
The principle of establishing an
independent Scottish Legal
Complaints Commission to handle
service complaints against lawyers
remains. However, concessions were
made on a number of points argued
by the Society from the outset. In order
to ensure greater compliance with the
European Convention on Human
Rights, an appeal to the Court of
Session against decisions of the
Commission, on limited grounds and
only with leave of the court, was
introduced and it was also agreed that
the Lord President should be involved
in the appointment and removal of its
board members and consulted on its
rules. A proposed new process that
would have led to the Society or
Faculty of Advocates being held in
contempt of court – with the President
or Dean facing the possibility of
imprisonment or a fine – for failing to
comply with a recommendation of the
Commission, was also dropped!
It is worth remembering that other
concessions were won at an earlier
stage, including withdrawal of the
provision to charge solicitors a case fee
even if a case against them was
unfounded, and the insertion of other
measures to distance the Commission
from government. The Society argued
robustly for an improved system to
benefit both the profession and the
public, and many of those views were
taken on board as MSPs reached broad
cross-party consensus. Enormous credit
and thanks are due to the Society’s bill
team for their tremendously hard work
and achievements. However, it would
not have been possible to convey the
strength of feeling among the
profession, had it not been for the
efforts of individual practitioners taking
up issues with their MSPs or in the local
press. Their role in the process cannot
be overestimated.
The Society will continue to examine
the amendments before the legislation
receives royal assent, although our hope
remains that an improved system,
which retains the confidence of
solicitors and their clients, will now be
established. We will continue to work
where possible with the Scottish
Executive and the Commission to
highlight any areas of concern. The new
system will bring change and not all of
this may be welcome.
December also saw the launch of the
Society’s annual report on equality and
diversity, which highlights a year of
achievement in those fields, and the
Society’s Disability Equality Scheme.
These are not just about meeting
mandatory legal standards: rather they
are part of work to ensure that the
Society and profession are, and are seen
to be, regulating and working in a way
that is fair and accessible to all. Perhaps
the most notable theme in both
documents is the real engagement of
the wider profession, whether it is the
3,000-plus solicitors who responded to
the Profile of the Profession study, the
50 individuals who attended the service
accessibility review (relating to people
with disabilities), or the members who
have signed up to be part of the
Society’s Equality Forum. They all
performed a valuable role. It is vital for
a body such as the Society to work with
its members, and we are grateful to
everyone who has helped us move to a
position where we are now respected
for our work in this field.
Education and training continues to
be an important topic and I have
noted the gathering momentum of
debate in several other jurisdictions,
with particular focus on outcomesbased training. A common theme
during this period of potential change
is the need for consultation with the
profession. The Society launched its
biggest ever consultation on precisely
this subject in November and
hundreds of solicitors have
responded. It is encouraging that so
many people recognise at least some
changes are needed, and are providing
positive and insightful suggestions.
The standard of those entering the
profession affects us all, and I
encourage those who have not yet
contributed to use the last few weeks
of the consultation (which closes on 9
February) to register their views on
any subject from undergraduate
degrees to continuing professional
development. They can do so online
at the Society’s website.
Congratulations to the Journal editor,
Peter Nicholson, and all those
associated with publishing the
magazine for winning two prestigious
awards. Receiving both the Business &
Professional Design of the Year and
Member Magazine of the Year titles at
the Scottish Magazine Awards was due
recognition for their achievements. A
great deal of effort and commitment
has gone into ensuring the Journal is
the most popular, interesting and
respected source of information about
the profession and the law in Scotland.
The publishers, Connect
Communications, have also been
awarded a five-year renewal of their
contract. The partnership has certainly
worked well to date and I expect will
continue to go from strength to
strength.
I would like to take the opportunity
to wish everyone a happy and
prosperous 2007.
Opinion
What can the legal profession learn from the
experience of the airline industry over the
past decade?
Cleared for take-off
I don’t know about you, but I
sometimes find an aeroplane is the
only place I can get enough peace to
think clearly. Once the phones are
switched off and the announcements
over, there’s something surreal about
travelling at 30,000 feet that allows the
mind to wander. It’s precious time, and
seeing a familiar orange livery on a
recent journey focused my thoughts on
the sector itself and what a remarkable
transformation it’s gone through in a
very short period.
It’s less than a decade since Easyjet
sold its first online ticket, and other
than Stelios himself, I don’t think
many of us would have believed what
was coming. First there was anger from
travel agencies, furious at the prospect
of disintermediation. This was
followed by scepticism by much of the
public at an offer to fly more cheaply
by plane than to travel by train. Finally,
as the “tipping point” approached,
many of the big carriers decided “If we
can’t beat them, we’d better join
them”.
It’s worth pausing to consider why it
took a shipping entrepreneur to change
the face of an industry and provide
what some customers were looking for.
In days gone by, flying was a mysterious
process. The only organisations
allowed to provide the service were
regulated and protected. Customers
were in awe of their ability to get them
from A to B and prepared to pay
whatever was asked, even though it
never quite felt right. There was no
Malcolm
Mackay
Malcolm Mackay is
Group Chief Executive
of Law At Work and a
consultant to law firms
competition and therefore no way to
measure service quality. And if you
were a business customer in particular,
well by default you’d be willing to pay
a premium – wouldn’t you?
Very quickly though, Stelios and his
Celtic rival demystified the process,
provided transparency in pricing, and
used technology to let people gather
their own information and act on it.
Customers of all stripes took up their
new offer, finding the access and
difference in price just too compelling.
The loyalty of business customers
didn’t last long either; in fact, for a
while, it almost became a badge of
honour to fly low-cost – at least for
certain trips.
The point was that suddenly real
choice existed. The new commoditydriven model took off around the
world, and surely it isn’t bad – just
different. How many of us would pass
on the chance to buy shares if we could
turn the clock back? Ever since, people
have been deciding for themselves
what it’s worth paying extra for –
punctuality, an assigned seat, better
food? And a range of offerings has
begun opening up to meet the full
spectrum of client needs that always
existed.
Interestingly, and perhaps betraying
cultural differences, the big carriers
reacted at different speeds. Some used
their infrastructure to follow the
client and create a new offering, then
got nervous and cashed in early.
Others have been in denial almost to
the present day. There are many
examples of other sectors affected by
a similar blend of market conditions
– financial and insurance services
perhaps being closest to home.
Would you as a consumer change
back to the old ways now?
Clearly, a special mix of ingredients
affected the airline sector, but it would
be a waste to ignore the learnings. The
degree of change made possible by a
couple of entrepreneurs without huge
pressure from customers has been
remarkable. Legal clients, on the other
hand, have been asking for change for
some time now – some even taking it
upon themselves to develop new
distribution models to improve access
to the information they want. Add to
that the freedom for all to innovate,
and the choices are clear: retreat to
higher ground, take on new entrants
or form alliances. There is another of
course, but it’s clear that may not be
the best choice. There are
opportunities for all. Client needs will
continue to cover the whole range
from basic legal information through
commoditised services to the high
value legal work, but lawyers will have
to decide which part of that
continuum they intend to occupy and
act on that decision.
The next decade promises to be a
very bumpy ride for lawyers, with
hopefully at least some smooth flying
after the initial turbulence. However, to
complete the journey successfully, best
to have a flight plan!
Feature Legal Profession Bill
After a tremendous amount of hard work by the Society’s
bill team and the profession to achieve a fair and workable
service complaints system under the Legal Profession Bill,
the Society made some significant gains at the final stage in
the Scottish Parliament. Peter Nicholson sums up
Countdownphase
“We now believe that the bill is
ECHR-proof, and that it will receive
royal assent some time in January”,
Michael Clancy, the Society’s Head of
Parliamentary Liaison, told the Council
meeting the following day. “There have
been improvements right across the
board, and the bill is now much
improved.”
T
he legal profession in
Scotland is into the
countdown phase for a sea
change in regulation. That
will occur with the coming into
operation of the Scottish Legal
Complaints Commission, probably
within the next two years, after the
enabling bill cleared its final
parliamentary stage shortly before
Christmas.
However the new body will operate
under quite a different legal regime
than seemed likely even in the run-up
to the Scottish Parliament’s stage 3
debate on 14 December, as the
Executive proposed or agreed to
support a series of amendments
designed to remove perceived
unfairnesses arising from the bill as it
previously stood.
Perhaps they intended to show by
example how they hope most disputes
will in future be settled. In any event
MSPs repeatedly affirmed their desire
10 / theJournal January 07
to achieve a consensual approach to
the final form of the bill, and while
inevitably a series of votes were called
on outstanding matters, much more
was agreed to or withdrawn as the
remaining major points of contention
were settled.
Convention-compliant
In particular the doubts over
compatibility with the European
Convention on Human Rights,
highlighted by the Law Society of
Scotland right up to the eve of the
debate with the backing of the
professional opinion of Lord Lester of
Herne Hill QC, appear to have been
resolved – this through the
combination of a requirement on
ministers to consult with the Lord
President before making
appointments to the Commission,
and the concession of a limited right
of appeal to the Court of Session,
with leave of the court.
“We now
believe that
the bill is
ECHR-proof...
There
have been
improvements
right across
the board,
and the bill
is now much
improved”
Team effort
For the Society’s bill team (Ruthven
Gemmell, President; John
MacKinnon, Vice President; Caroline
Flanagan, Past President; Douglas
Mill, Chief Executive; Phillip Yelland,
Director of Client Relations; Gillian
Meighan, Director of Corporate
Communications; and Michael
Clancy), the outcome is some reward
for an immense amount of work
since the Legal Profession and Legal
Aid (Scotland) Bill first saw the light
of day early last year.
It is generally acknowledged within
the parliament that the Society’s
unremitting efforts to engage with
ministers, civil servants and members
of all political parties alike over the
implications and likely effects of the
bill were highly effective. At times it
looked as if they might go unrewarded,
but through sheer persistence MSPs
listened and important progress was
made.
“The purpose of the Society
throughout has been to ensure that any
new system for handling complaints
against lawyers is an improvement on
the existing process”, Douglas Mill
commented as MSPs finally approved
the bill. “And, indeed, a number of
those who spoke during the
parliamentary debate paid tribute to
the work of the Society.”
One of the objectives of the bill team
was to ensure that they kept the
More on the bill>
Journal, November 2006, 16: Society’s view of changes to date
Journal, July 2006, 10: Justice 2 Committee’s report
profession and stakeholders informed
at every step of the process. The
profession took action to make their
voices heard, ensuring that their MSPs
were aware of the negative
consequences of the proposals both for
solicitors and their clients. Nonsolicitor committee members, business
suppliers and clients also contributed
greatly to the breadth of the debate.
The next phase
Mill is hopeful that the revised bill,
and regulations to follow, will
provide the basis for a fair and
workable system. “We will examine
the amendments in detail, although
our hope remains that an improved
system, which retains the confidence
of solicitors and their clients, will
now be established. The hard work
on the practicalities starts here and we
will continue to work where possible
with the Scottish Executive and the
SLCC to highlight any areas of
concern in order to fulfil our duties
towards the public and the legal
profession in Scotland.”
And that phase of the work, for the
Society and the profession, begins now.
To recap, solicitors (and advocates)
have two years at most to prepare for
the new regime, under which:
The Scottish Legal Complaints
Commission will investigate all
complaints of inadequate
professional services, including
allegations of professional negligence,
not settled through conciliation, with
power to order compensation of up
to £20,000;
The Law Society of Scotland will
continue to investigate and prosecute
all matters of alleged professional
misconduct, and will have a new power
to make a finding of unsatisfactory
professional conduct where a solicitor’s
actings are regarded as unsatisfactory
but falling short of professional
misconduct;
The Commission will be funded
entirely by the legal profession,
through an annual levy on solicitors
with a practising certificate together
with a levy per case where a complaint
is resolved through or upheld by the
Commission – but not now where the
solicitor is exonerated;
The Commission will be appointed
by ministers through the public
appointments procedures, but subject
to consultation with the Lord
President, who must also consent to
the dismissal of any member;
The Commission will have the
power to deal with complaints from
members of the public about the way
in which the professional bodies have
The late late amendment show
Among the amendments to the bill
agreed at stage 3 were:
In assessing compensation for
distress and inconvenience the
Commission shall take account of levels
of damages awarded by the courts in
similar circumstances. Deputy Minister
Johann Lamont: “I hope that that will
make clear what we have always said:
when a services complaint might
alternatively have been brought as a
court action, compensation will be
broadly in line with what a court would
have ordered.”
Appeal from the Commission to the
Court of Session will be allowed, with
leave of the court, on these grounds:
error of law; procedural error; irrational
exercise of discretion; or decision not
supported by the facts. Similar appeal
provisions apply to the mental health
tribunals. The Commission would be
respondent in the appeal – thus
ensuring that the costs are borne by the
profession. Johann Lamont: “The
restricted right of appeal will not affect
the policy aims underlying the creation
of the Complaints Commission. The
small number of important appeals that
might go to the Court of Session by this
route will emphasise the Commission’s
ultimate accountability to the courts for
its decisions.”
If a professional body fails to comply
with a Commission direction, the
Commission may petition the Court of
Session for an order to comply. Only
following such an order might any
question of contempt of court arise.
To increase accountability, the
Commission shall publish by 31 March
each year the responses it receives to its
annual consultation and proposed
budget, unless confidentiality is
requested.
To underpin the Commission’s
independence from government, the
Lord President is to be consulted before
the Commission makes or varies any
rules of procedure; and ministers must
consult him before making any
appointments to the Commission.
dealt with a conduct complaint, and of
oversight of the operation of the Master
Policy and Guarantee Fund.
Educating the profession
“It is really important for firms to
look at how they deal with client care
issues and to ensure that they have
the right client relations partner in
place for the new era. Resolving
matters before they reach the
Commission will be the key”,
commented Philip Yelland, Director
of the Client Relations Office.
He added: “The client relations team
will of course continue to handle both
service and conduct complaints until
the SLCC starts work, and there is
much to be done to ensure a workable
system. We will continue to
communicate with our members and
will have an education programme so
that we give members as much support
as possible to prepare them for the new
regime.”
Clearly much detail has still to
emerge, and the Journal will keep
readers fully briefed as the picture
becomes clearer.
Law from over the border
Meanwhile, for Douglas Mill
attention is already switching to the
Legal Services Bill for England &
Wales, which he fully expects to have
unavoidable knock-on effects in
Scotland.
“The task which the Society
Johann Lamont: “That will help to
reinforce the fact that members of the
new commission will have to be able to
adjudicate in an independent and
impartial way. Those judicial qualities
will be assessed as part of the
appointments process.”
The Commission will be able to
reject a complaint without investigation
if it is “totally without merit”, as well as
any that are frivolous or vexatious.
Any direction of the Scottish
Solicitors Discipline Tribunal on an
appeal relating to an unsatisfactory
professional conduct complaint will be
enforceable in the same way as an
extract registered sheriff court decree.
Amendments defeated included:
An attempt to reduce the maximum
compensation competent to the
Commission from £20,000 to £15,000;
An attempt to make the Commission
conduct a review and report on the
workability of the different handling of
conduct and service complaints after
two years.
undertook in relation to the
Complaints Bill was immense and
whilst I think we all deserve a wellearned rest, a new team will be
formed in the new year to start
looking at the issues coming out of
the English Legal Services Bill, in
particular in relation to the formation
of alternative business structures. In
many ways, these may have a more
profound effect on Scotland’s
collegiate profession and provision of
legal services in the high street than
the Complaints Commission, and
whilst we probably have very little in
the way of influence over the
Westminster bill, we still need to
make the points which we have
emphasised up until now, namely,
that very little consideration has been
given to the regulation of these
entities.
“The Society has no root and branch
opposition to them. Our position is
pragmatic and we have been asking for
a number of years now for an adequate
regulatory model to ensure that our
corporate approach to fidelity,
negligence and other issues is not
prejudiced by inappropriate control
– and this is the issue rather than
ownership – of small legal firms.
“I am not sure that the complex
licensing model which the bill
proposes is the answer. It may be
effective for the City of London but it
presents dangers for the public and
profession in Scotland.”
Feature Planning Act
The passing of the Planning etc (Scotland) Act is only the
start of the process of reform, say Robin Priestley and Jason
Mackay, and much will depend on regulations, national
policies – and the resources to support the new system
A quiet
revolution
T
he turn of the year is
More to come
traditionally time to
The full effect of the new Act will
look back and reflect. As
not be felt for some time yet, as
winter gales howled,
timescales for implementation
there was little fanfare confirming
have not yet been announced.
the passing of the Planning etc
Draft regulations and orders will
(Scotland) Bill by the Scottish
be issued this coming year and are
Parliament on 16 November, yet
expected to be finalised in 2008.
there were TV reports on climate
Contentious subjects such as the
change, proposed windfarms, and
new appeals structures, fee scales
experimental tidal generators.
and local decision making need to
Among reports that planning
be looked at in detail. The issue of
applications for house extensions,
whether planning permission will
loft conversions and
be needed for domestic
The implication alterations will also
conservatories might
is that planning need secondary
soon be a thing of the
application fees legislation.
past, there was little
are bound to
coverage of the new
Many current
rise steeply
Scottish legislation
national planning
soon, though
which might enable
policies will need to be
perhaps most of reviewed, and revised
just that, far less any
analysis as to whether it us will not have or replaced. The second
to pay them –
actually will.
National Planning
in respect of
Most of the main
Framework (NPF) is to
our own houses be published by the
changes (see panel)
at least
will no doubt improve
Scottish Executive in
the current system once
2008. This will outline
implemented. However the Act is
how development and use of land
just the start. The ultimate aim is,
in Scotland could and should
in the words of Communities
occur, and a strategy for
Minister Malcolm Chisholm, to
sustainable development to 2028.
bring in “a much more efficient
While the NPF will largely cover
planning system to support the
nationally important
economy and help it grow in a
developments, it is also to
sustainable way”, and “an era
encompass locally delivered
where communities will be
services and facilities in key policy
involved from the start in shaping
areas. Can anyone therefore
their futures”. That will be far from
prepare to implement the new
easy, and implementation of the
planning system until the NPF has
new Act will simply be the first of
been published anyway? It seems
many hurdles to overcome.
unlikely that the Act will be in
force before 2008 or 2009.
To be successful, the new
planning system will also rely on
accurate development plans,
updated every five years with
input from all corners of the
community, private or
commercial. Confidence in the
new system will be paramount,
particularly when there currently
seem to be no real penalties for
planning authorities who miss the
five-year deadlines.
Resources – will there be
enough?
We now have a new Act, but how
will everyone ensure it works?
Internal reorganisation of each
individual planning department
will certainly be required.
Planning authorities will need
time to adjust, and for retraining,
recruitment and familiarisation
with the new procedures.
More importantly, will they
have the budgets to support all
this? The estimated increased cost
of the new system is
approximately £261,000 per
authority and £9 million across
Scotland. Will extra funds be
made available, or are they to
come from efficiency savings
elsewhere? (The mooted removal
of “householder applications”
from the system was never
presented as being for the benefit
of householders, but to free up
many planning officers to deal
with commercial applications.)
Authorities will certainly need a
more efficient income-generating
process. It is estimated that
planning application fees create
an income of £22 million, but at a
cost of £98.3 million (see the
Executive’s “Resources for
Planning” research paper). The
City of Edinburgh Council
estimated the annual cost of their
simply carrying out neighbour
notification at around £435,000.
The implication is that planning
application fees are bound to rise
steeply soon, though perhaps
most of us will not have to pay
them – in respect of our own
houses at least.
Planning authorities struggle
with the present system, yet the
new system is likely to demand
increased efficiency, rigid
adherence to deadlines and better
contact with the “community”,
where it has a direct or indirect
interest in a proposed
development. Most would agree
that authorities do not have a
good track record of meeting
deadlines, particularly in
determining commercial
applications and updating
development plans. An estimated
70% of development plans are out
of date, and 40% of current
adopted plans are more than 10
years old. Development control
statistics often reflect the planning
authority’s failure to meet its
annual targets. However, what are
the incentives to meet those
Planning reform: some key proposals
targets and what are the penalties
for not meeting them, particularly
when a lack of finance and staff is
the cause?
While planning authorities face
resource issues, the “community”
is also to be further encouraged to
engage early with the planning
process. This has particular
resource implications. What help
will be available so that the system
allows an adequate balance to
ensure new development meets
the concerns of the community
on whom they will impact –
particularly where a small, diverse
(and poor) community faces a
well resourced developer?
The planning gain supplement
While there are questions about
how the new system itself is to be
resourced, there are also very
significant questions as to how the
infrastructure required to support
new, sustainable developments
will be paid for. Readers will be
familiar with the old controversies
about planning gain (which is
either “how to make the private
sector pay for the things the public
sector used to”, or “how to make
developers pay for the things that
wouldn’t be needed but for their
developments”, depending on
your point of view).
The latest proposals, north and
south of the border, are for a
“planning gain supplement”
(PGS) to be introduced, perhaps
by 2009, to help pay for local and
A National Planning Framework for
the delivery of national policies and
programmes
A new planning hierarchy of
development types, with different
procedures for processing
applications and appeals
Working from a single development
plan (except for the four city regions),
updated every five years
strategic infrastructure for future
economic and residential growth.
Journal readers may recall
comment on the original PGS
proposals, by others more
qualified than ourselves: Aitken
and Duncan, Journal, January
2006, 22; updated, Journal
Online, submissions, 17 August
2006.
Suffice to say, current PGS
proposals (as at the Pre-Budget
Report) are still in their infancy,
and PGS may not happen unless,
“after further consultation, it
continues to be deemed workable
and effective” by the government.
There is now at least an intention
for all PGS revenues to be
returned to the devolved
administrations, and 70% to be
returned to the local authority
area, in which they were
generated. PGS would be payable
on “residential and nonresidential development”, except
home improvements. Developer
contributions to infrastructure
provision would still be collected
through (in Scotland) s 75
agreements, but would be scaled
back to take into account the
contributions made through
payment of the PGS.
Where the line might be drawn
between PGS liability and the
scope of such scaled-back
contributions is unclear. In any
case will the PGS in its final form,
Reduction in the time limit for
appeals from six months (from the
date of an actual or deemed refusal)
to three
Community engagement
Pre-application consultations for
certain types of development
Local authorities to take over
responsibility for neighbour
notification of applications
whatever that may be, prove
sufficient for local authorities to
provide the infrastructure needed
to sustain development, and will
developers see their PGS
payments utilised efficiently in the
area where they were generated?
There are concerns about gaps in
funding, the timing of payments
and the valuation of land value
uplifts.
You take the high road…
Only a few weeks after Scotland
passed its Planning Act, in
Westminster proposals were
published for a fundamental
review of the planning system in
England and Wales (Review of
Land Use Planning, final report,
principal author Kate Barker who
also produced the PGS
proposals). Many of the proposed
changes mirror those now to be
introduced in Scotland; some go
further. Media attention again
focused on proposals to abolish
the need for planning permission
for most house extensions etc
(and let Building Regulations cater
for these). Is this simply
coincidence, or are all eyes now
on how well Scotland implements
its new system before the rest of
the UK follows suit? Furthermore,
the likely timescales for
implementation of our new
system and for introduction of the
PGS are remarkably similar.
What’s in it for me?
We can now buy rooftop
domestic wind turbines and
solar panel kits cheaply in B&Q,
but (currently) need planning
permission to install them. At
the same time we can fly all over
Europe for a fraction of that cost.
Which has greater
environmental impact? Can the
new system succeed in moving
us to a place where sustainable
development is encouraged but
we all have proper democratic
involvement in development
proposals?
Current public knowledge of
and engagement with the
planning system is low. Market
research recently conducted for
Anderson Strathern suggests 90%
of the population is unaware of
Scottish planning reform. Only
10% have ever commented
on/objected to a planning
application, yet over 50% of those
objections were to housing
developments, not to the large
transport projects and wind farms
which receive most media
attention.
Perhaps these statistics simply
tell us something we already knew
(and a lot about the need for
reform in the first place). But what
they seem to suggest is that people
do usually care about their local
neighbourhoods – but few of us
feel that engaging with the system
to state our views on new
developments is worth the effort.
Whether it will be worth the effort
in a few years’ time (while also
reducing delays and uncertainty
for Scotland’s business
community and delivering
sustainable development) is the
big question.
From a national perspective,
Scottish planning reform seems
radical but has something in it for
everyone. The real results will only
be seen at local level when end
users can judge whether the
reforms meet ministers’ aims.
Whether planning authorities can
cope with and find resources to
implement the new system,
particularly if the planning gain
supplement is introduced at the
same time, is a major challenge.
Hopefully Scotland will find a way
that our friends in the south will
wish to follow.
Robin Priestley and Jason Mackay,
Planning and Environment,
Anderson Strathern
People
Intimations
for the people
section should
be sent to:
Denise Robertson,
Record Dept.,
The Law Society
of Scotland,
26 Drumsheugh
Gardens,
Edinburgh EH3 7YR
Email:
deniserobertson@
lawscot.org.uk
Onthemove
ALLCOURT, Livingston, intimate that
Kenneth Robert Watson Hogg retired as
a partner of the firm with effect from 1
January 2007, but are pleased to
intimate that he continues to be
associated with the firm as a consultant.
Colin Crosby has been appointed Senior
Investment Director following the
disposal of the business ABERDEEN
PRIVATE INVESTORS LTD to BELL
LAWRIE. He continues to specialise in
discretionary investment for private
clients.
Alistair Graham Napier and Joanne
Susan Smith intimate that, with effect
from 8 January 2007, they have formed
a new practice, COMMERCIAL LEGAL
CENTRE, a limited liability partnership,
based at 36 Tay Street, Perth PH1 5TR
(tel: 01738 443050; fax: 01738 643207;
email: [email protected]).
DALE & MARSHALL , Galston, intimate
that David R F Hall resigned as an
associate of the firm to pursue a change
of career, with effect from 31 October
2006. They are pleased to announce
that Alastair J Dale has been appointed
as an associate with effect from 1
November 2006.
DALLAS McMILLAN, Glasgow, are
pleased to announce that on 11
December 2006 the firm relocated to
1st Floor, Regent Court, 70 West Regent
Street, Glasgow G2 2QZ. The firm’s
telephone number has changed to 0141
333 6750 and its fax number to 0141
333 6777. The firm’s DX box number
remains GW30.
appointment of Alexa Morris as a
partner and head of property
department of the firm with effect from
1 December 2006.
GRAY & CONNOCHIE, Aberdeen, are
delighted to announce that with effect
from 1 November 2006 Fiona
Margaret Thomson was promoted to
become an associate of the firm.
HANNAY FRASER & CO, Glasgow and
Rothesay, are delighted to announce
that, with effect from 1 December
2006, their assistant, Elainne Lea
Sibbald has been promoted to the post
of associate and will continue to be
Iain Taylor, E-Corporate
Iain Taylor announces that he has started
his own business law practice with effect
from 1 December 2006. His new practice is
known as E-CORPORATE, and he can be
contacted by telephone on 07951 995528,
by email at [email protected] or
through its website: www.ecorporate.co.uk. At the end of August 2006
he resigned from YOUNG & PARTNERS LLP
after seven years as corporate partner.
based at their Glasgow office. Elainne
can be contacted on 0141 221 1381
or by email at elainne@
hannayfraser.co.uk .
HBM SAYERS, Glasgow, are delighted
to announce that on 1 December 2006
Gillian Rushbury became a partner of
the firm.
Following a successful first year in
business, e-LITIGATE announce their
relocation to 61A Mayfield Road,
Edinburgh EH9 3AA. All other contact
details remain unchanged.
Vincent Hilland and Kathleen McNulty,
(both formerly of SMAIL & EWART, 70
High Street, Lanark and 79 High Street,
Biggar), are pleased to announce that
with effect from 2 October 2006 they
have set up in practice as HILLAND
McNULTY, 74 North Vennel, Lanark
ML11 7PT (Legal Post LP 9 Lanark; tel
01555 663020; fax 01555 663025;
email: [email protected]).
GRANT BROWN LINDSAY, Glasgow,
are pleased to announce the
A & S IRELAND, 18 Waterloo Street,
Glasgow, 108 Byres Road, Glasgow and
DMD LAW LLP, Edinburgh, are pleased
to announce that their consultant Neil
Alexander McIntosh Mowat was
assumed as a partner, on 1 December
2006.
138 Ayr Road, Newton Mearns, are
pleased to intimate that Terence
Docherty, their senior solicitor based in
the Waterloo Street office has been
appointed an associate with the firm as
from 1 September 2006. They further
intimate that with effect from 1 January
2007, the managing partner Anthony
Ireland has moved to a consultancy role
within the firm.
JAMESON & MACKAY, Perth and
Auchterarder, are pleased to announce
the assumption of Susan Smart as a
partner of the firm with effect from 1
January 2007.
intimate the resignations of Alistair G
Napier as a consultant and Joanne S
Smith as an associate with the firm,
with effect from 29 December 2006.
Margaret Waldron and Marichen Robb
are delighted to announce that THE
LAW PRACTICE has moved. With effect
from 1 December 2006 the contact
details for THE LAW PRACTICE are as
follows: 2 Rubislaw Place, Aberdeen
AB10 1XN (tel: 01224 562870; fax:
01224 621540; DX AB53 Aberdeen;
email: [email protected]; web:
www.thelawpractice.org).
IAIN SMITH & CO, Aberdeen and
Stonehaven, are pleased to announce
that Fraser G Leslie has joined the firm as
a partner as at 1 January 2007. Fraser will
head up the Commercial Conveyancing
Department which has enjoyed
considerable expansion over
the last several years. The
existing partners are
delighted to welcome
Fraser to the firm.
Send your
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communications
From 1 January 2007, KEEGAN
WALKER & CO, SSC, will continue to
practise under the new name of KW LAW.
The firm operates as before from offices
in Livingston and Bathgate. All contact
telephone numbers and LP remain the
same but the email address will now be
[email protected] and the web
site www.kwlaw.co.uk . Email for
individuals as before with the new name
substituted for the old. There has been no
change in the partnership structure of the
firm and all personnel remain as before.
KIPPEN CAMPBELL, WS, Perth, are
pleased to announce the appointment
of Tom Gibson as an associate, with
effect from 15 January 2007. Tom is
based at the firm’s main office at 48 Tay
Street, Perth, and will join the Domestic
Conveyancing team. He can be
contacted on 01738 635353 or by
email at [email protected]. They also
WARNERS, Edinburgh,
are delighted to
announce the
appointment of Douglas
Williamson and Deborah
McCathie as associates in their
Residential Department with effect
from 6 and 20 November 2006
respectively, with Douglas Williamson
being located at their Corstorphine
office and Deborah McCathie at their St
Patrick Square office.
A C WHITE, Ayr are very pleased to
announce that Ewan Mowat, their
Employment Law associate, has been
assumed as partner of the firm and that
Martine Walker, latterly partner with
MATHIE MORTON, Ayr has been
appointed associate in their Court
Department, both with effect from 1
January 2007.
WILSON TERRIS & CO, SSC,
Edinburgh and Glasgow, intimate that
A Desmond Baxter has resigned as a
partner with the firm with effect from
31 December 2006.
Feature Age discrimination
Keith Miller reports on how the Law Society of Scotland’s
own staff had to brush up their skills and awareness to
match the Age Equality Regulations
Acting your age
F
or the Law Society of
Scotland, the coming
into force of the Age
Equality Regulations on
1 October led to a review of key
employment policies, including
recruitment, training, retirement
and redundancy.
The Society selected Keith L
Miller Associates, training and
management consultants, to
provide a bespoke training
package covering two key areas,
recruitment and age awareness.
Managing director Keith Miller
describes the new regulations as
“undoubtedly the biggest change
in employment law in the past 30
years”. They cover all employees,
private, public and voluntary
sector, providers of vocational
training, trade unions, trustees,
professional associations and
employer organisations.
Ken Cunningham, HR Manager
at the Society said: “We recently
redeveloped our website to
support online recruitment, and
introduced a standard application
form. These changes also enabled
us to take account of employment
legislation and in particular the
effect of the new age legislation.”
It is crucial that managers at the
Society understand the new
procedures, especially the
preparation of job descriptions,
employee specifications,
advertising and interviewing.
Using phrases such as
“experienced and mature”, “young
and dynamic” or asking for “10
years’ experience” could be
indirectly discriminating against
younger or older workers, though
an employer may justify the
discrimination as a proportionate
way to pursue business objectives.
Tailored course
The course provided participants
with the knowledge and skills to
understand the law affecting
recruitment, prepare job
descriptions and specifications,
and improve interview and
assessment techniques.
Companies should train
managers to be proactive in
dealing with ageism. The Society
went one step further and trained
all 130 members of staff in age
awareness and the implications of
the regulations.
For managers, Keith Miller
recommended that in addition to
understanding key elements of the
legislation, the training should
focus on their responsibility for
implementation, in the areas of
recruitment, training, promotions,
retirement and redundancy.
the importance of having policy
and procedures to meet the
legislation and that managers and
employees not only understand
but implement them.
Another area highlighted was
the changes to retirement and the
default age of 65. Employers are
now required to notify employees
in writing of their right to request
working beyond retirement age;
however employers have the right
to refuse to approve it.
Professional approach
Ken Cunningham reports a very
positive reaction from those
attending. “The main feedback
was the absolute need for good
preparation before advertising
positions, with an emphasis on
appropriate job titles, tight job
descriptions, and specifications
which reflect what is actually
required within the job rather
than what is felt to be required.”
Keith L Miller Associates
phone/fax: 01236 738748
e: keith@keithlmillerassoc.
wanadoo.co.uk
www.keithlmillerassociates.co.uk
Test of knowledge
Part of the course included a legal
quiz. For example: A 22 year old is
great at their job, but has just been
turned down for a promotion
because they don’t have the
necessary five years experience.
Could the new legislation help?
The answer: Yes. The employer
has to show that they made the
decision based on suitability for
the job and that five years’
experience is essential.
When asked the maximum
award for discrimination
compensation, a number of
participants were unsure of
the answer. The fact
that there is no
limit reinforces
Feature Family law
In his quarterly article Kenneth Norrie welcomes the
new Adoption and Children (Scotland) Act 2007 but
doubts whether, as intended, it has made the law any
clearer in two key respects
Adopting
new solutions
T
he Adoption and Children
(Scotland) Bill successfully
completed its parliamentary
progress on 7 December
2006. Press coverage was,
disappointingly, limited to the single
issue of “gay adoption” but, pleasingly,
was on the whole supportive of the
parliament’s overwhelming
endorsement of couple-adoption
beyond marriage partners. Joint
adoption will now be open to civil
partners, as well as cohabiting couples
(whatever the gender mix) in enduring
family relationships. The Act, of course,
does much more. I want to draw
readers’ attention to only two different
issues, both of which underwent
substantial amendment as the Act
worked its way through the Scottish
Parliament.
Grounds for dispensing
with parental consent
The rule is not changed that an
adoption order needs either the
consent of the parents and guardians
or, if that consent is not forthcoming,
the dispensing by the court of consent.
The grounds for dispensation under
the existing law are set out in s 16 of
the 1978 Act, and the process by which
the court decides whether to dispense
has been laid down in a series of Court
of Session cases. The original intention
of the Executive, expressed in para 18
of the policy memorandum which
accompanied the bill as introduced,
was to simplify the complexities of the
existing grounds. I am not sure that any
simplification has been achieved.
Section 31 of the Act sets out five
grounds, the existence of one of which
will allow the court to consider
whether to dispense with parental
consent to adoption. The grounds are
(a) that the parent or guardian is dead
(s 31(3)(a)); (b) that the parent or
guardian cannot be found or is
incapable of giving consent
(s 31(3)(b)); (c) that the parent or
guardian has parental responsibilities
or parental rights but is unable to
discharge them and is likely to
continue to be unable to do so
(s 31(3)(c) and (4)); (d) that the parent
or guardian does not have parental
responsibilities or parental rights and is
unlikely to obtain them (s 31(3)(c) and
(5)); (e) that where neither (c) nor (d)
applies the welfare of the child
otherwise requires the consent to be
dispensed with (s 31(3)(d)).
Grounds (a) and (b) do not really
change the law and are uncontentious.
Grounds (c) and (d) are the successors
to the old grounds of “persistent
failure” and “serious ill-treatment”, but
they are deliberately non-judgmental
in the way the old grounds were not
and are to be welcomed for that reason.
(Though since “parent” is defined in s
31(15) as a parent with parental
responsibilities and rights, it is difficult
to see when ground (d) can ever
apply.)
Two questions in one
Ground (e) is even more
problematical, because if an applicant
can establish this ground he will always
also have satisfied s 14(3), whereby
welfare is the court’s paramount
consideration in determining whether
Welfare
restated:
The 2007 Act
Under s 14 of the
new Act the court or
adoption agency is
to regard the need
to safeguard and
promote the welfare
of the child
throughout the
child’s life as the
paramount
consideration.
Certain specified
factors are listed to
be taken into
account; the agency
must also consider
whether adoption is
likely best to meet
the needs of the
child or whether
there is some better
practical alternative
for the child
to dispense with parental consent.
There were two flaws with this. First,
the Court of Session has insisted that
the decision of whether to dispense
with consent is different from and
subsequent to the decision of whether
a ground for dispensation exists – and,
crucially, that the questions must be
tackled in the correct order. The new
formulation conflates these two
logically separate questions into one.
Secondly, the European Court of
Human Rights has told us time and
again that child protection
mechanisms cannot be activated just
because a child would be better off
with one set of carers than another.
Otherwise a child could be removed
from satisfactory parents and given to
highly satisfactory parents.
An adoption system must be able to
accommodate a proposed adoption
being frustrated by a parental refusal of
consent, even when it is in the welfare
of the child to be adopted. Welfare is
the paramount consideration but it
cannot on its own be the justification
for state interference in family life.
Courts are going to have to be
imaginative in giving “welfare” in
s 31(3)(d) more limited scope than it
has in s 14(3).
Permanence orders and
supervision requirements
Though the new Act is in large part a reenactment of the 1978 Act, there is one
part that is totally new: a new order, the
permanence order (PO), is created.
This will replace both freeing orders
and parental responsibilities orders
and is designed to be more flexible
More on adoption law reform>
Journal, July 2005, 20: “Adopting a new approach”: The recommendations of the Cox
Committee report (available on www.journalonline.co.uk)
than either, giving the court the power
to make an order that is tailored to the
particular circumstances and the needs
of each individual child who requires
to be removed from their birth family
on a permanent basis. Adoption might
or might not be appropriate for such a
child and “the permanency planning”
for different children can take that fact
and all other relevant matters into
account.
The single most important issue,
discussed at all three stages of the
parliamentary process, was the interrelationship between the new
permanence order and other lawful
orders, in particular supervision
requirements. This is a matter of great
practical importance because children
who will be made subject to
permanence orders will nearly always
be in the children’s hearing system
already. There were two major fears:
(i) that a child might be subject to two
separate legal processes at much the
same time and in relation to identical
problems; and (ii) that it was unclear
which order took precedence if the
two processes resulted in two,
inconsistent, orders.
Suspending the supervision process
The first fear is addressed in s 96. This
provides that when an application for
a PO is made, a supervision
requirement may not be made or
varied until the PO application has
been dealt with. It is important to note
that this does not remove the
jurisdiction of the children’s hearing
either during the process for obtaining
a PO or during the subsistence of the
order once made. A children’s hearing
may still be arranged even when a PO
application has been made and, in the
absence of any rule to the contrary, the
hearing may issue warrants to detain
the child until a decision can be made
by them. The hearing may also
continue an existing supervision
requirement without variation,
perhaps requiring a review under s
70(7) of the 1995 Act once the PO is
made (if the supervision requirement
survives). And the hearing may make a
new supervision requirement after a
PO has come into force.
Permanence orders and other orders
The second fear, relating to precedence
of orders, is dealt with by a number of
provisions, not all of which are
contained in the new Act. There can be
no clash with s 11 orders made under
the 1995 Act because s 88 of the new
Act provides that the making of a PO
has the effect of revoking any existing
s 11 order; and s 103 provides that the
court cannot make a new s 11 order
(except for an interdict or the
appointment of a judicial factor) while
a PO is in force. The aim is to ensure
that any matter that would otherwise
be dealt with by the court in private law
proceedings will be dealt with by the
permanence court (which has much
the same powers and to which there is
much the same access).
Similarly, s 89 of the new Act
provides that on the making of a PO
any existing supervision requirement
will be brought to an end, though only
if the court is satisfied that making the
PO renders compulsory measures of
supervision no longer necessary. But
there is nothing to prevent a
supervision requirement being made
subsequently. In that case, s 90 of the
new Act provides that a local authority
may not do anything in the exercise of
the parental responsibilities and
parental rights it has in terms of the PO
which is incompatible with any
supervision requirement. The latter has,
in other words, precedence.
Now, this rule in its terms applies
only to local authorities and the PO
may confer most of the parental
responsibilities and parental rights on
other persons, such as, typically, longterm foster carers. But these other
persons may not act incompatibly
with a supervision requirement either,
because s 3(4) of the 1995 Act (which
only applies to natural persons,
according to s 15(4) of that Act, thus
the necessity for s 90) gives precedence
to supervision requirements. The only
exception is when an interim PO is
made under s 97. If an interim PO is
made over a child currently subject to
a supervision requirement, the making
of an interim order does not terminate
the supervision requirement but the
terms of the interim order will prevail
over any inconsistent terms of that
requirement (s 97(5)).
Still to be tested
Much still needs to be fleshed out in
regulations and rules of court. Even
after this Act comes into force, we are
likely to have a lengthy period of
uncertainty before the Court of Session
gives us guidance on many other
matters. The Act has certainly
modernised our adoption system and
is better for both children and
prospective adopters. It cannot,
however, be said to have simplified the
law in any way at all.
Kenneth McK Norrie is a Professor of
Law in the University of Strathclyde
Welfare is the paramount
consideration but it cannot on its
own be the justification for state
interference in family life
Feature Custodial sentences
Apart from the Sheriffs’ Association, few lawyers have
passed much comment on the Custodial Sentences etc
Bill. Cyrus Tata however believes that its provisions will fail
in their objective of providing greater clarity and certainty
Clear as mud?
T
The main changes proposed
Currently prisoners sentenced to less than
four years’ imprisonment are normally
released automatically and unconditionally
after half their sentence. Those sentenced
to four years or more are normally
released on licence after up to two thirds
of their sentence has elapsed.
The bill aims to make the system more
certain, clearer and more transparent.
When passing sentence, the court will
have to state that the sentence comprises
a “custody part” and a “community part”.
Everyone sentenced to 15 days or more
will be released “on licence” (subject to
recall for breach of licence conditions) after
they have served between 50% and 75%
of their sentence. However, the Parole
Board will be able to order that someone
is kept in prison (on grounds of risk)
beyond the “custody part” determined by
the court (but not beyond the 75% point –
at which he or she must be released). The
“community part” is to involve both closer
supervision and support for the needs of
people leaving a period of imprisonment.
The bill does not make any real changes
to life sentenced prisoners. However,
readers familiar with the life licence system
will note that the bill seeks to import the
logic of that system into the system
dealing with all determinate sentence
prisoners. The key difference is that
determinate sentence prisoners must be
released from all restrictions after the
completion of 100% of their sentence.
he Custodial Sentences
and Weapons (Scotland)
Bill, which Scottish
Ministers are anxious to
see passed before the May election,
has attracted little scrutiny from
lawyers. This is surprising on two
counts. First, as we shall see, the
bill sets out a series of changes
which, if passed, will have major
impacts on the effective sentence
to be served. This will mean that
defence lawyers will need to
consider changing how they advise
their clients; and prosecution and
defence negotiation tactics are also
likely to have to alter. Secondly, at
a broader level which affects the
reputation of all lawyers, public
confidence in our legal system is
undermined by a feeling that
sentencing is not “honest” (i.e. the
sentence passed does not match
the time served). Research
highlights that this is at the top of
the reasons for public cynicism. So
we have to deal with this apparent
“dishonesty” and also protect the
public. This, according to its
proponents, is what the bill aims
to do. But will it?
The fundamental aims of the
bill, to increase transparency and
public safety, are contradicted by
the detail of the bill. There are a
series of key questions and
problems which proponents of the
bill have so far failed to address.
1. Automatic release ended
in name only
Proponents of the bill have
proclaimed that it sees the
complete abolition of
unconditional automatic release.
We are told that that under the
new clearer, safer regime there will
More on sentencing>
Journal, November 2006, 18: “Guiding hand” (sentencing guidelines)
Journal, February 2004, 44: “On sentencing” (Du Plooy case and discounts)
be “tough, tailored” supervision in
of having to request that if a short
the community, based on risk
custodial sentence is to be passed,
assessment. However, the
that it be made longer than the
Executive has quietly had to
court would otherwise have
concede that, with most short term
passed? In considering a custodial
prisoners (especially those serving
sentence, should the courts be
six months or less, but probably
cognisant of the effective sentence
others), risk assessment and
to be served, or should they ignore
individualised supervision will
that the sentence passed will, in
simply not be achievable. For
effect, be subverted by the
these, the licence will be merely
proposed release structure? Will
nominal (for example to “be of
different practices emerge among
good behaviour”). “Tough,
different sentencers?
tailored” licences not only require
Given that the Scottish Executive
much more funding but also more
acknowledges that with sentences
time: it is practically impossible to
of between 15 days and six
carry out proper risk assessment
months the licence will be
and “tailored” supervision with
nominal, why have the 15 day cutpeople who have a few weeks of
off point at all?
their sentence to go. As the Risk
Management Authority and senior
3. The 50%-75% rules
criminal justice social workers
will add confusion
have reminded us, proper risk
A: Double sentencing
assessment is a complex process,
Section 6 of the bill aims to
not a 10 minute box-ticking task.
provide that the “custody part”
So the claim will not be matched
must be a minimum of 50% of
by the reality – a point quietly
the overall sentence, but that this
conceded in the background
may be increased up to 75% if the
documentation. It seems
individual sentencing judge
that the Executive is
considers it appropriate.
hoping that no one
On what grounds would
will notice that a
such variation be
g
in
ss
At the time of pa
promise is being
“appropriate”? Section
t
sentence it will no
made which it
6(4) states that the
le
ib
normally be poss
knows cannot be
custody element may
n
tio
ra
du
to predict the
kept.
be increased up to
rve
a person will se
75% on three grounds:
in custody
2. Perverse effects
the seriousness of the
While those sentenced to
offence(s); previous
15 days or more will be released
convictions; the timing and nature
early on licence, those serving less
of a guilty plea. Yet all these
than 15 days will have to serve
criteria currently form (and will
their sentence in full. As a result,
continue to form) the basis of
someone sentenced to, for
determining the overall headline
example, 14 days will end up
sentence. Why should sentencers
serving more time than someone
be asked to make the same
supposedly punished more
judgment twice?
severely (for example 21 days),
It will also lead to more
who will be out after 50% of their
substantive questions, such as the
sentence. Plainly this will be
impact on the practice of
absurd. How does it assist in
discounting for a guilty plea –
making the system more
should this be done twice? Is an
intelligible to offenders, victims
offender to be punished twice on
and the wider public? Moreover,
the same criteria (once in the
this 15 day cut-off contradicts the
overall headline sentence and
fundamental principle of
again in the minimum point of
proportionality in punishment.
release)? Clearly this will lead to
We might well expect that
confusion, and disparate
someone sentenced to 14 days or
approaches and practices
less will wish to challenge the basis
emerging. Despite these problems
of a system which leads to such
having been pointed out, the
perverse results.
Executive has found itself wholly
The 15 day cut-off gives rise to
unable to explain why this
other dilemmas which lawyers
double sentencing practice is
and sentencers will have to face. To
proposed. What is the rationale
promote the best interests of
for inviting individual sentencers
clients, will defence lawyers see
to increase the custody element
themselves in the unique position
up to 75%?
fyi
B. Seriousness and protection: an
artificial distinction
Section 6(5) provides that in
setting the “custody part”, the
court “must ignore any period of
confinement which is necessary
for the protection of public”.
Background documentation
indicates that this is supposed to
require sentencers only to include
the “punishment element”, and
thereby subtract the “risk element”
from the sentence. This seems, as
the Sheriffs’ Association suggests,
both confusing and odd. It might
start to make some sense (at least
in terms of incapacitation) if
sentencers were allowed to
consider “public protection” in
setting the punishment part. But
this is expressly ruled out and, as
we saw above, sentencers can only
set the punishment element on
the same grounds as the
“headline” sentence.
In any event, it is hard to see
how this strict separation between
“risk” and “seriousness” will work.
The categories of public protection
and seriousness will continue to
be very difficult to distinguish in
determinate sentence cases. The
bill’s attempt to draw this
distinction will be seen to be
artificial and confusing.
C: Will public safety really be
paramount?
Supervision and support in the
community is, as the Executive
says, important in helping people
go straight, thereby increasing
public safety. While
imprisonment is necessary in
some cases, its experience typically
breaks family, social and other
ties, which are so important to
helping people go straight. One in
two prisoners is homeless on
release. If we want people not to
re-offend, we need not only to
monitor but to help them rebuild
their lives. This is an important
objective. However, as we have
seen, s 6 of the bill also allows
individual sentencers to cut from
50% to 25% the very period of
support and supervision which we
are told is so vital to public
protection, for those who will
most need it. The reason for this
provision is wholly obscure.
4. The explanation in open court:
an unknown outcome
Proponents of the bill claim that it
will finally ensure that offenders,
victims, and the public will be
given a clear explanation what the
sentence actually means. In fact it
achieves less clarity and certainty.
Currently, this lack of certainty is
true of sentences of four years or
more, but the bill extends
uncertainty of the point of release
to all prisoners serving 15 days or
more. The Sheriffs’ Association has
observed: “This situation would
not appear to be conducive or
consistent with a policy of clarity,
certainty and transparency.” This is
because at the time of passing
sentence it will not normally be
possible to predict the duration a
person will serve in custody – such
decisions will also be in the hands
of the prison and parole
authorities.
Dealing with reality
These, then, are just some of the
contradictions in the bill which
will affect court practitioners
directly. To be fair to the
Executive, release and the
management of sentences is both
a technically complex and
controversial area. But it surely
cannot help public confidence
(which proponents of the bill cite
as their primary motivation) to
make grand promises which
cannot be kept. The bill will
create further gaps between
appearance and reality.
If we really want to produce a
more transparent system based on
public safety, we have to stop
fiddling about with back door exit
points from prison and start
thinking seriously about front
door entry points as well.
Cyrus Tata is Director of the Centre
for Sentencing Research and Senior
Lecturer in Law at Strathclyde
University
Someone sentenced to, for
example, 14 days will end up
serving more time than someone
given say 21 days
Interview Ethnic minorities
After 15 years operating in Glasgow the Ethnic Minorities
Law Centre has won funding for an Edinburgh office – the
first law centre of any kind in the capital. Peter Nicholson
went to find out how the breakthrough was achieved
Majoring
in minorities
l-r: Edinburgh case workers
Sarah Jack and Georgia
Gavin; Board chair Jonathan
Squire; Principal solicitor
Kathleen Bolt
T
o most of the legal
profession they
probably don’t even
show up on the radar.
They support politically
unpopular cases while depending
almost entirely on public
funding, often provided with
strings attached. But to a sizeable
section of the population they are
the only source of help if an
individual’s very presence in
Scotland comes under threat.
Such is the nature of the Ethnic
Minorities Law Centre, which just
last month took a significant step
forward when after 15 years
confined to Glasgow and
adjoining areas, it opened its
doors also in Edinburgh. A
pioneering move indeed for the
capital, where not only are there
very few solicitors practising in
EMLC’s core fields of
immigration, nationality and
discrimination, but until now
there has been no law centre of
any description.
So how did EMLC achieve such
a breakthrough? The proof of
concept happened, according to
Rosie Sorrell, principal solicitor in
the Glasgow office since 2001,
with the development of
“mainstreaming” over the past
two years through a project
covering the North and South
Lanarkshire Council areas, two of
the Glasgow centre’s more
committed funders over the years
in its attempts to reach beyond the
city. A partnership arrangement
with the Lanarkshire citizens’
advice bureaux involves the two
agencies in a reciprocal referral
arrangement. With EMLC’s main
areas of work being immigration,
nationality, asylum,
discrimination and employment
law, and CABx handling mostly
Rosie Sorrell speaking at
the Edinburgh launch
debt, money advice and welfare
benefits, the two work happily
together and at the same time
help EMLC’s clientele into services
directed towards the general
population.
Mutual benefits
“Also on the training side we help
CAB advisers in order to build
their capacity to advise on issues
that perhaps we’re more
specialised in but if they’re basic
enough they can actually do
themselves”, Sorrell explains.
“Equally they can do the same for
us. That principle is something
that project has been built upon
and it’s been very successful. We’ve
seen a massive increase in the
number of clients that we’re
getting through the door but also
the CABx have seen an increase,
which is obviously a key aspect of
that partnership.”
And that, she explains, is the
blueprint not just for Edinburgh,
where EMLC will work in
partnership with the city’s five
CABx, but hopefully further afield.
“We’re keen to roll out the model
into other parts of Scotland too,
and we’ve got a joint bid in at the
moment with Citizens Advice
Scotland, they’ve actually got their
funding agreed, to set up a service
in Inverness.”
While there are grounds for
optimism that minorities in other
parts of Scotland will be able to
access a service hitherto denied
them, it would be wrong to
pretend that even a well
established centre like Glasgow
doesn’t have to keep going cap in
hand in order to secure its funding
for another couple of years.
A constant search
“It’s partly the nature of funding,
More on EMLC>
Journal, April 1999, 30: Interview with Kathleen Bolt, then principal solicitor in
the Glasgow office; available on www.journalonline.co.uk
you have to constantly look for
funding to this project that we
new sources. Some time ago
might be setting up in Inverness,
Glasgow Asylum Seekers
but from what I understand it
Consortium decided not to fund
would broaden their powers to
legal advice for asylum work any
be able to fund organisations
more even though there are still
such as us, to carry out core work
asylum seekers in the city, so that
without having to say, OK we’ll
obviously had an impact on us.
start a new project whatever it
Even though we’ve not stopped
might be. For us that would be a
seeing the clients, we have to
good thing because it’s a really
seek out other sources of funding
difficult and challenging aspect of
to maintain our delivery of
our work to be constantly
services and to have
seeking funding for what
continuity of staff.”
we’re just here to do.”
So, for example, a
new youth
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of a similar previous project
“Essentially we’re a legal
that particular issues arise for this
practice, we’re professional and we
group which may be quite
don’t want to get embroiled in
different to those of older people.
any of the politics that potentially
“I’m not saying I’m not happy
is out there”, says Sorrell. “I think
to have that new project, because I
we’ve been successful on that,
am”, she adds, “but it’s a
because you can see from the
frustration to me that we’re not
annual report the diversity of our
just funded for the core work that
client base is really wide. I think
we do sometimes, and that we
that’s credit to us because it shows
have to reinvent ourselves to some
there’s a trust and confidence
degree.”
that’s built up from a wide range
More positively, funded projects
of communities and not just a
can help the centre reach beyond
particular community.”
simply offering legal advice. A
Sometimes indeed the centre
female support project over the
can find itself supporting
past two years has been of
individuals against others from
particular help to its 300 asylum
the same or different minority
clients. “They’ve suffered
groups, and not solely in the
traumatic experiences, they get
context of domestic relationships.
very little in the way of emotional,
Bad employment practices can
counselling support, and it’s
something that we just can’t really
comprehend, but we got the
Coming full circle
funding through the Community
Planning Partnership in Glasgow
Senior solicitor in EMLC’s new Edinburgh
for a female support officer for
base is Kathleen Bolt, who until 2001
women asylum seekers and
was principal solicitor in the Glasgow
refugees, and that has been of
office. Since then her career has seen
spells both with the Commission for
great benefit for clients.
Racial Equality and in private practice.
“I was really keen to get that off
“I was delighted to hear that EMLC
the ground. I’d actually like it to
had succeeded in securing funding for
be for men as well”, Sorrell
a new office in Edinburgh”, she told
explains – but that, no doubt, will
the Journal. “Taking up the post of
need someone to offer another
senior solicitor here presented a
little pot of cash.
unique opportunity to deliver a new
She is cautiously hopeful that
service to black and minority ethnic
communities in Edinburgh, where no
the new Legal Profession and
such provision existed. It also provided
Legal Aid (Scotland) Bill/Act will
a unique opportunity to establish a law
make a difference. Though the
centre in Edinburgh. I was also
centre has quite a good
attracted by the strategic approach
relationship with the Scottish
that underpinned the delivery of the
Legal Aid Board, to date it can
new service, namely working in
only provide support through a
conjunction with mainstream services
Part V project. “They have
such as Edinburgh CABx to develop the
actually committed some
fyi
occur with employers from ethnic
minority communities just as
with indigenous employers, and
Sorrell knows of cases where
employees have not been paid at
all, never mind below the
minimum wage. Some clients
who have gained refugee status
and entered the employment
market have moved to London,
“where they feel more
comfortable, which is quite sad
actually, because Glasgow claims
that it’s a welcoming city and it
has a lot of support structures for
asylum seekers, but when they
have gained refugee status people
are on their own, and yes they’ve
got all the access to benefits and
avenues of employment that
anyone else has, but they’re not
treated on an equal footing”.
Institutional progress
Just a few years ago the phrase
“institutional racism” was
frequently heard, as a series of
reports criticised the treatment of
ethnic minority individuals at the
hands of, say, the procurator fiscal
service and police. Has Sorrell
noticed an improvement
following the headline drive
towards best practice? She agrees
for example that it has become
easier to request an interpreter,
“but I think sometimes efforts on
paper don’t necessarily translate
into the impact they should have
on the ground, so I think there’s
still a lot of work to be done. But
the will is there, and that’s
obviously positive”.
capacity of such organisations to meet
the needs of ethnic minority
communities. This in particular allowed
me to build on the experience I had
developed within the CRE.”
The funding for EMLC in Edinburgh is
for the delivery of a core service, the
provision of legal advice and
representation to address the unmet
legal need of the black and minority
ethnic communities within the city.
However the partnership work which is
being established between EMLC and
the local CABx is a critical component of
the funding.
“Although Edinburgh and Glasgow
can feel like very different cities, we
suspect that the unmet legal needs of
the black and minority ethnic
communities will be largely centred
around issues of immigration,
discrimination and employment, as they
Within the profession itself, she
has seen limited progress for
would-be ethnic minority
solicitors. “There are quite a lot of
people from ethnic minorities
doing law degrees, but it seems to
be that once you go past that level
there are fewer people doing the
Diploma which you need to
become a solicitor. That’s where
the split seems to occur. Though I
think there are more women from
ethnic minorities qualifying now.”
Having successfully instigated a
Glasgow Immigration
Practitioners Group in 2001 to
encourage more private firms into
that area of work, EMLC hopes to
build similar relationships as it
extends its network. “I hope that
for example in Edinburgh
something similar could be built
up. Because Edinburgh’s worse, it’s
got less access to these kind of
services than Glasgow, and there is
quite a big ethnic minority
population there now.”
Indeed it seems that having
made the breakthrough into the
capital, EMLC could be at
something of a watershed. As
Rosie Sorrell sums up: “It’s
rewarding because I feel that in
the last few years our reputation
has been built up, and I think we
are getting more recognition now
from people like the Executive,
councils, SLAB and the
Commission for Racial Equality;
we’re actually being recognised for
what we should be. We’ve
provided a professional legal
service for a long time.”
are in Glasgow”, says Bolt, adding that
since under Home Office policy new
asylum seekers dispersed to Scotland
live in Glasgow, they expect to work
more with the many and varied
immigration issues that continue to arise
for established refugees and for
individuals and families who have been
settled in Scotland for many years.
“We are also keeping an open mind as
to exactly what people’s needs might be.
We are aware that one very new issue
which we expect to deal with, is the
legal needs of the new migrant workers
coming to Edinburgh, who we
understand are very much in need of
advice on employment matters.”
Ethnic Minorities Law Centre:
41 St Vincent Place, Glasgow G1 2ER
103 Morrison Street, Edinburgh EH3
8BX. www.emlc.org.uk
Professional news Society
Whose votes will
shape the future?
Initial results of the Society’s
consultation on the education and
training of solicitors in Scotland
show a wide range of responses from
outwith the legal profession as well as
from the profession itself.
The consultation aims to invite
responses from as many backgrounds
and people interested in legal
education as possible.
Of the first 250 responding, 116
were from private practice (including
31 trainees) and 26 in-house lawyers.
There were 18 LLB and 33 Diploma
students, two MSPs, six civil servants,
one human resources professional,
three from other UK professions and
45 others.
That gives a total of 61% solicitor
respondents, 49% private practice
solicitors and 12% in-house. Other
groups include members of the
public, citizens advice workers,
education experts, clients, advocates,
judges, MPs and MEPs.
Director of Education and Training
Liz Campbell said: “The Society is
hoping more people will register their
views. We’d particularly like to see
more responses from private practice
and in-house lawyers and would like
more MSPs to rise to the challenge of
helping shape the future of the legal
profession. We’d also like to gain
more insight from experienced HR
professionals working in law and in
firms. The consultation, and
ultimately the public and the
profession, will benefit from
including as many different views as
possible.”
Deputy Director Neil Stevenson
added: “We need greater
engagement from small and
medium sized firms, as well as the
larger firms to keep up the good
work. We’ve seen a very good spread
in terms of numbers of years’ postqualification experience, but we also
need more people who are teaching
on the current LLB, Diploma and
who those who supervise trainees to
respond, as we have low numbers in
these groups.”
The consultation can be accessed online at
www.lawscot.org.uk/training/consult, and
closes on 9 February.
Write if you don’t do online
Received as a letter to the Editor:
Whilst I appreciate that some
members of the profession may be
put off by being asked to complete
an online questionnaire, can I try to
persuade as many people as
possible to respond to the
education and training
consultation?
Given the extent of the changes
currently proposed by the Scottish
Executive, we are at an important
crossroads for both the Society and
the Scottish legal profession as a
whole. The consultation provides the
opportunity to comment on one
important aspect by asking us to
consider how we train and educate
the next generation of Scottish
lawyers.
I have just completed all of the
questionnaires and I can confirm
that it did require an investment in
time and careful thought. Albeit
some of the phrases used and
constraining structure made it
cumbersome to get the essence of
what I wanted to say across, I hope
that I have managed to do that.
I would ask all of you who are
concerned about ensuring that we
are training young lawyers to be
robust and fit to practise, at the
same time as allowing the
continued success of the profession,
to contribute to the consultation
process, either online or by letter.
Fiona Westwood, Glasgow
SYLA’s café challenge
The Scottish Young Lawyers
Association is worried that
most people will simply not
take a mere 30 minutes out of
their busy lives to have their
one and only say on the future
of Scottish legal education
and training. They’re
particularly worried that
young lawyers won’t respond,
says committee member Sara
MacKinnon.
But surely young lawyers
are the people who know best
about the issues with the
current education and training
system? Are they not
experiencing it right now, or
the ones who have been
through it the most recently?
Do they not think the
Diploma is dire? Or that the
LLB is really the BLL – Black
Letter Law course – and why
can’t it be more about
modern, practical legal skills
as well? Or that the
traineeship is two years of
Another new
PSL group
A new group has been formed for professional support
lawyers (PSLs) working in corporate departments in law firms
in Scotland. PSLs in Corporate currently has members from
McGrigors, Maclay Murray & Spens and Dundas & Wilson
and has been formed to provide mutual support for members
in their roles as PSLs.
The group meets monthly to discuss current corporate law
issues, particularly at present those surrounding the new
Companies Act 2006.
The next meeting will take place on 18 January and we
would be pleased to hear from any other corporate PSLs who
would like to join us. Please contact any of the following:
[email protected]
[email protected]
[email protected]
MacKinnon is
President Elect
The Law Society of Scotland’s
current Vice President, John
MacKinnon, has been
confirmed as President Elect
of the Society for the year
2007-08. John, a partner in
Brown & McRae, Fraserburgh,
has represented the sheriff
court districts of Stonehaven,
Peterhead and Banff on
Council for the past 10 years,
including terms as convener
of the professional practice
and practice management
committees. He takes over as
President from Ruthven
Gemmell at the end of May.
The Vice President Elect
for 2007-08 is Richard
Henderson, who will shortly
retire from the Office of the
Solicitor to the Scottish
Executive.
slave labour in a suit?
Or are they just not
bothered? The SYLA want
Scottish young lawyers to
prove them wrong and
respond to the consultation
on www.lawscot.org.uk/
training/consult . Even better,
they could come along to the
Easyinternetcafé in Rose Street,
Edinburgh on Tuesday 23
January from 6 to 7.30pm to
complete the survey online en
masse. As an incentive SYLA
are offering free internet
access, a free coffee and cake
and entry into a prize draw. To
book your free place just email
SYLA at sylawebsite@
hotmail.com. (Free stuff made
possible by the kind
sponsorship of independent
financial advisers MLP
Private Finance – www.mlpplc.co.uk .)
Schools debate in full swing
Sixty two teams are through to
the second stage heats of the
Law Society of Scotland’s annual
debating competition for
schools.
Pupils from across the country
will be competing for one of the
16 places in the regional finals of
the Donald Dewar Memorial
Debating Tournament when the
second round takes place on 1
and 6 February.
The picture shows the
Society’s New Lawyers Coordinator Collette Paterson
(second right) at the first round
heats with pupils from Glasgow
schools St Aloysius, Notre Dame
and Hutchesons Grammar.
News
in brief
Iona Ritchie (centre) with her
Update colleagues
Iona leaves for the
fine things in life
Iona Ritchie has left the Law Society of
Scotland after 16 years, seven of them
as head of the Update department.
Iona started in the department, and
returned after spells in Legal
Education, Professional Practice and
as PA to Douglas Mill.
Iona, who is married to Society’s
Director of Professional Practice Bruce
Ritchie, is taking up the reins of
Cockburns’ deli in Queensferry Street,
only a stone’s throw from the Society’s
Drumsheugh Gardens offices. Iona
said: “I’ve really enjoyed my time at
the Society but I’m very excited about
running my own venture. At least I’ve
had all the right legal advice!”
The name of the business will not
cause any difficulty for Iona as
Cockburn was her name before she
married Bruce, and she’s going into
business with her daughter, Sarah.
David Cullen, the Society’s
Registrar, who oversees the Update
team, said: “Iona will be greatly
missed both by the Society and the
profession. She has consistently
staged innovative and relevant
conferences which appeal to solicitors
and other professionals and has a real
finger on the pulse of CPD. We wish
her well in her new business.”
Special deals
reminder
A reminder of the
special offers recently
negotiated by the
Society on behalf of
members:
Adobe Acrobat
Professional Version
8.0 (for document
archiving, case
management systems,
encrypted signatures
and secure document
transfer), is available at
a 40% discount.
The Trustis smartcard
reader, tested with
ARTL and the Registers
of Scotland smartcards
and including ARTLspecific instructions
approved by the
Registers, can be
purchased for £27 plus
£2.95 p&p (plus VAT)
per unit.
For all current members’
deals see www.lawscot.
org.uk/Members_
Information/Deals/ .
Professional
practice
Taking instructions for a
will: duty to meet client?
The Professional Practice
Committee considered a letter from
a solicitors’ firm in respect of a
promotion on behalf of a charity.
The charity had circulated solicitors
with a proposed pack for preparing
wills. The costs indicated would not
allow for a face to face meeting with
clients. The solicitors were
concerned that this would lead to a
breach of the solicitor’s duty to the
client, particularly new clients, and
sought guidance on whether there is
a duty to meet with a client before
preparing a will.
The committee observed that the
issues of capacity and identity
would need an encounter with the
client of such a nature that the
solicitor could satisfy himself on
these two matters. The nature of
such an encounter would depend on
the circumstances, including the
solicitor’s previous knowledge and
experience of the client. It was also
observed that article 5(a) of the
Code of Conduct states: “solicitors
require to discuss with and advise
their clients on the objectives of the
work carried out on behalf of the
clients and the means by which the
objectives are to be pursued”.
Professional news Address to new entrants
At the recent Admission Ceremony the guest speaker, the Court
of Session judge Lord Hodge, challenged his audience to be
confident in the future in the face of change, and not to be
apologetic in defence of human rights. We are pleased to reprint
a slightly abridged version of his address
Believe in the future
I
was very pleased to be invited by
my old friend, Ruthven
Gemmell, the President of the
Law Society of Scotland, to speak
to you this morning. It is a privilege to
have the opportunity to address young
lawyers at the start of their professional
careers and to be able to share the pride
which your parents and families must
feel at your success.
In speaking to you today there are
three themes that I want to emphasise.
They are opportunity, service and
confidence. I will speak briefly on the
first two as I want to concentrate on the
third theme, that of confidence.
The first theme is opportunity.
Opportunity is what young lawyers
have today. Your qualification can open
doors in private practice, in which
many of you may choose to
spend at least part of your
Lord Hodge
careers. It enables you to work in
central or local government, in
Edinburgh’s substantial financial
services sector or elsewhere in business
or industry. It qualifies you for jobs in
the voluntary sector and can be a way
of starting an academic career. Some of
you may choose to join the Faculty of
Advocates, as I did after my
apprenticeship – I was among the last
of that tribe, having trained as a
solicitor with Ruthven Gemmell in
Brodies between 1980 and 1982.
Significantly, you are not confined to
Scotland but there are openings for the
dynamic professional in London, in
Europe and further afield. Once
qualified as a Scots lawyer, it is not
difficult to convert to qualify in the law
of other jurisdictions.
Taking the criticism
Whatever direction you choose for your
career, I hope that you will put service
to your clients or to the institution
which employs you at the heart of your
work. This is my second theme. There is
now much ill-informed criticism of
lawyers. But such criticism is not a new
phenomenon. When reading history at
university in the south I studied,
among other things, Tudor and Stuart
political and social history. And I
remember reading of the anger of
Tudor moralists against the lawyers of
their day. Their description which I
recall was that lawyers were “leeches of
the Commonweal”. No doubt the
lawyers of that time were an easy
scapegoat for ills that were not of their
making. Some things do not change.
Lawyers should expect to be
subjected to ill-informed criticism; the
practice of centuries is not likely to stop
overnight. But what is important is that
we all strive to serve those for whom we
work so that clients, employers or
whomever we serve get good value for
money. You must also earn and retain
the trust not only of your clients but
also of your colleagues with whom you
negotiate or against whom you appear
in court. Lack of trust in any society or
in any walk of life increases
transactional costs. It wastes clients’
money.
Value for money is not merely a
question of the level of fees that you
may receive for your work. That is only
one side of the balance. The other side
is the quality of service that you
provide. If you know and can apply in
a practical way the law in the field in
which you work, if you keep abreast of
the changes in that field of law so that
your advice is up to date, if you analyse
thoroughly the problems that you are
asked to solve and come up with
practical answers to them, then you
will have provided a valuable service
and will be entitled to reasonable
remuneration. If you give such a service
and charge reasonable fees for that
service, you may still be criticised. That
may be irritating, but you have the
comfort of knowing that it is not
informed criticism. If you provide a
good service at a reasonable cost, if you
do right by your client, you will be in a
strong position to defend your practice
and your profession against illinformed criticism.
Engage in public debate
My third and principal theme is
confidence. I have chosen that theme
because there are many in both
branches of the profession who are
seriously concerned about the future of
the legal profession. Whether it is the
Clementi proposals or the Legal
Profession and Legal Aid (Scotland)
Bill or the proposals in the Executive’s
consultation paper which purport to
strengthen judicial independence that
cause concern, many consider that the
profession is facing unprecedented
challenges from both the Scottish
Executive and the Scottish Parliament.
These developments are not confined
to Scotland. Throughout the United
Kingdom questions are being asked
about the future structure of the
profession and whether it is
appropriate that the profession should
no longer police itself but be subjected
to the supervision of a public
regulatory body.
I believe that the profession as a
whole should respond with
confidence to these challenges. It was
and is right that the leaders of the
Society and the Faculty of Advocates
sought and seek to engage in the
public debate and present their views
to executive and legislature, in an
attempt to persuade them to amend
proposals which they perceive as
misguided or unfair. It is right also
that individual members of the
profession should consider the issues
with an open mind. Are there areas of
practice which it is appropriate should
be subjected to public regulation?
Would the control of complaints by a
public body enhance the confidence
of the public in the profession, or
would it unduly erode the
independence of the profession? What
is the best way to strengthen the
independence of the judiciary and
thus safeguard the rule of law?
It is healthy in a civil society and in a
profession to debate these issues
openly. It is also healthy to accept the
inevitability of change, to be willing to
adapt to change and, importantly, to
seek to exercise some control or at least
some influence over the process of
change. This means engaging in the
public debate about the profession,
and doing so with confidence. If some
people in the profession speak as if
they were walking down Princes Street
carrying placards which state “The End
of the World is Nigh”, do not be afraid
to walk in the opposite direction with
your own placard which states “Not if I
can help it”.
Lawyers in the modern world
You have reason to be confident in the
face of change. Lawyers have a vital role
to play in the complex structure of
modern capitalist societies, both in
bringing about necessary changes
which the executive government and
the legislature wish to introduce and
also in protecting the individual
against powerful organisations,
whether they be the state or a large
commercial organisation.
In 2001 in his presidential address to
the David Hume Institute, the former
Lord Chancellor of Great Britain, Lord
Mackay of Clashfern, gave a thoughtful
and spirited defence of the legal
profession in a text which merits
Lord Hodge at the Admission Ceremony with mother and son Anne and Andrew Martin, and President Ruthven Gemmell
If some
people in the
profession
speak as if they
were... carrying
placards which
state “The End
of the World is
Nigh”, do not
be afraid to
walk in the
opposite
direction with
your own
placard which
states “Not if
I can help it”
reading, entitled “Are Lawyers
Parasites?” (David Hume Institute
Occasional Paper no 59). He pointed
out that modern society is complex
and requires to be governed by detailed
rules. He concluded that the legal
profession gave services that were
necessary for a just and peaceful society
and that those services were not
disproportionately rewarded having
regard to their value.
Whatever balance is struck between
public regulation and the ability of the
profession to set its own professional
standards, I believe that an
independent legal profession is an
important part of a healthy civil society.
It would not be a healthy development
for there to be a national legal service
with all lawyers employed by the state.
Fortunately, such a suggestion is not
part of the present debate. The
independent profession provides what
some sociologists describe as “bridging
social capital”, an important and
coherent social grouping in an
atomised society other than a
government body.
No need to apologise
I see no need for the profession to
apologise for its independence; quite
the contrary. On reading the account of
the recent conference on “Balancing
the Scales of Justice” in the Society’s
Journal I was struck by the comments
of Sternford Moyo, the former
President of the Zimbabwe Law
Society, in which he observed that an
independent profession was a
necessary underpinning of the
independence of the judiciary. The
independence of mind of the
practitioner is an important attribute
which trains lawyers to think
independently as judges.
Finally, I would urge you not to be
apologetic about the profession’s
defence of human rights. In a society in
which people have concerns over
immigration, asylum seekers,
international terrorism and,
increasingly, home-grown terrorism, it
is easy for some commentators to get a
receptive audience when pillorying
human rights law as being too focused
on the rights of the individual at the
expense of the rights of wider society,
or as being an alien legal import into
Britain.
But they are wrong on both counts.
First, human rights law seeks to set a
fair balance between the interests of the
individual and the interests of wider
society. In many cases the interests of
society prevail over the individual’s
rights: see, for example, A v Scottish
Ministers 2002 SC (PC) 63. Secondly,
many of the principles of the European
Convention on Human Rights are
derived from the British constitutional
tradition. In the terrorist suspects case A
(FC) v Secretary of State for the Home
Department [2004] UKHL 56, Lord
Hoffmann stated at para 88:
“I would not like anyone to think
that we are concerned with some
special doctrine of European law.
Freedom from arbitrary arrest and
detention is a quintessentially British
liberty, enjoyed by the inhabitants of
this country when most of the
population of Europe could be thrown
into prison at the whim of their rulers.
It was incorporated into the European
Convention in order to entrench the
same liberty in countries which had
recently been under Nazi occupation.
The United Kingdom subscribed to the
Convention because it set out the rights
which British subjects enjoyed under
the common law.”
Those rights were won by brave
lawyers, brave litigants and brave
judges. The legal profession in Britain
has a good story to tell. You are now
part of that story; and you should not
be afraid to tell it.
Professional news Appreciation
Sheriff A B Wilkinson pays tribute to Stuart Fair, former
senior partner of Thorntons, Dundee, who died on 16
November 2006 aged 76
Dr J Stuart Fair
CBE, LLD, WS
After attending Perth Academy and
graduating MA from St Andrews
University in 1952 and LLB from
Edinburgh University in 1956, Stuart
spent a short time in legal practice in
Edinburgh. In 1958 he went to
Dundee, first as an assistant and two
years later as a partner in W B Dickie
& Sons. It was the decisive step of his
career. He was to be a key figure in the
highly successful process of
development and amalgamation
from which the firm emerged, under
the name of Thorntons, to occupy a
leading position among the legal
firms of Dundee and the east of
Scotland. From 1984 to 1991 he was
senior partner of Thorntons. Among
his clients were some of the most
important commercial undertakings
in Dundee, and his advice and
expertise lay behind much of the
improvement which took place in
Dundee’s commercial prosperity.
Stuart saw the University of
Dundee as playing a vital role in the
regeneration of Dundee after the
decline of its traditional industries.
He had for long been much involved
in university business and from 1988
to 1993 was chairman of the
University Court. His firm but fair
handling of business and his implicit
understanding of the ethos and
workings of a university lay behind
much of the progress which the
university made at that time. When in
1993 he became chairman of the
Dundee Teaching Hospitals NHS
Trust he was able to harmonise
developments at Ninewells Hospital
and in the university medical school
to the advantage of both, and his
expertise in charitable funding
contributed greatly to the support of
medical charities and of research in
the medical and life sciences in which
the university was rapidly gaining an
outstanding and international
reputation.
The chairmanship of the Teaching
Hospitals Trust was a peculiarly
challenging task. In 1993 NHS trusts
were a controversial innovation.
Government support which should
have been forthcoming proved to be
unreliable. Public opinion was
divided and often hostile. There were
hard decisions to be made, but Stuart
addressed the problems and, in
circumstances of great difficulty,
planned effectively and put the
finances of the trust on a sound basis.
Perhaps most important of all from
the standpoint of public concern and
impact, he ensured that the delicate
task of the closing of Dundee Royal
Infirmary and its transfer to Ninewells
was carried out efficiently and as
smoothly as possible.
Stuart’s services to the university
were recognised by the conferment of
an honorary LLD in 1994 – an
honour which beyond all others gave
him satisfaction. In 1997 he was
appointed CBE. He was Dean of the
Faculty of Procurators and Solicitors
in Dundee from 1977 to 1979,
president of the Dundee and Tayside
Chamber of Commerce and Industry
from 1980 to 1981, and from 1992 to
1996 chairman of the Dundee Port
Authority. From 1999 to 2002 he was
a member of the development
advisory board of the National
Museums of Scotland, and from 2000
to 2003 a trustee of the Dundee
Heritage Trust. Studies to which he
was drawn by his experience as a
temporary sheriff from 1988 to 1998,
Dr J Stuart
Fair CBE,
LLD, WS
1930-2006
His advice and
expertise lay
behind much
of the
improvement
which took
place in
Dundee’s
commercial
prosperity
and as chairman of the review
committee for Perth Prison, led to the
degree of MSc in Criminal Justice
from Napier University in 2000.
Despite the calls of a busy life,
Stuart always found time for his
family, to whom he was devoted, for
his friends and for the enjoyment of
his many interests. The high
standards of integrity which he held
to be at the core of professional life
marked all his dealings, and both his
dedication to work and his public
service were part of a strongly held
ethical perspective. The material fruits
of professional success he regarded as
something to be shared. The
hospitality which his wife, Lesley, and
he offered in their home in Dundee
was legendary. To his friends and to
those in need he was generous
beyond measure. He had a sensitive
appreciation of the visual arts and a
deep love of music. He enjoyed the
good things of life and, above all,
good company. In his travels – for he
was an inveterate traveller with a keen
interest in the places and peoples he
visited – making new and renewing
old acquaintances was a particular
pleasure.
Stuart lived a full life, full in
achievement and enjoyment and full
too in dedication to the welfare of
others, and his qualities of mind and
heart enriched all whose lives he
touched. In 1957 he married Anne
Lesley Cameron. She was his constant
support in all he did. After she died in
2003 life was never to be the same
again but, although much hampered
by illness, he sought to rebuild it as
best he could. He is survived by two
sons, a daughter and five
grandchildren.
Professional news Notifications
“Agreement in principle”
can cut caution delay
When making or varying a
guardianship or intervention
order under the Adults with
Incapacity (Scotland) Act 2000,
the sheriff may order the person
authorised to provide a bond of
caution from a regulated
institution or approved cautioner.
This protects the adult’s estate
from any loss arising as a result of
the mishandling of their affairs by
the guardian or intervener.
The sheriff usually provides a
time limit for caution to be found,
ranging from four to 12 weeks. In
practice, if application for a bond
of caution is not made promptly
after the sheriff’s order, delays and
additional expense can arise.
The Office of the Public
Guardian, sheriffs and solicitors
have expressed concern at the
time taken to obtain caution. In
some cases the court has had to
be petitioned to extend the period
for finding caution, which may
lead to unnecessary expense to
the adult’s estate.
To address this issue and to
minimise delays, Zurich GSG Ltd
offers an “agreement in principle”
service, at no additional charge.
On receipt of a completed
application form, details of the
anticipated level of caution, a copy
of the summary application and a
copy of the report in the prescribed
form, as required by s 57(3)(b)
and/or (c) of the Act, an agreement
in principle to issue the bond can
be provided together with an
indication of the premium
payable. Once a final interlocutor
has been issued, the bond of
caution can usually be issued
immediately on receipt by the
cautioner of a signed application
form and copy of the interlocutor,
provided any underwriting
requirements indicated at the time
of the agreement in principle have
been met.
Where the case has already
been heard by the sheriff and an
interlocutor issued, the
documentation can be forwarded
to Zurich GSG Ltd for review. The
company aims to respond within
24-48 hours and in most cases is
able to issue the bond within 24
hours, provided any underwriting
requirements have been met.
Contact: Ayesha Asghar, Zurich GSG Ltd,
Second Floor, Sandfield House, Water
Lane, Wilmslow, Cheshire SK9 5BZ
t: 01625 527242
Notifications
Entrance
certificates
issued during
November/
December 2006
BURNS, Michelle, LLB(HONS),
DipLP
HARDIE, Sarah Elaine, BA(HONS),
LLB, DipLP
McCHRISTIE, Laura Anne,
LLB(HONS), DipLP
McCONNELL, Ashleigh,
LLB(HONS), DipLP
McDONALD, William, LLB, DipLP
MARCHANT, Rebecca Frances, BA,
LLB, DipLP
PETKEN, Damon, LLB(HONS),
DipLP
SIMPSON, Lynn Rae, LLB(HONS),
DipLP
WATSON, Laura Rachel, LLB, DipLP
Applications for admission
issued during November/December 2006
ANDERSON, David Jack Noble,
LLB(HONS), DipLP
ANGUS, Gregor Cameron,
LLB(HONS), DipLP
BREMNER, Laura Jane,
LLB(HONS), DipLP
BURKE, Lindsay Ann, LLB(HONS),
DipLP
CHRISTISON, John Kyle,
LLB(HONS), DipLP
COHEN, Matthew David, LLB,
DipLP
DOCHERTY, Suzi, LLB(HONS),
DipLP
EMERSON, Edward Horatio,
MA(HONS), LLB, DipLP
GIBSON, Kevin, LLB(HONS), LLM,
DipLP
GIBSON, Rachael Louise,
LLB(HONS), DipLP
GILMORE, Claire Marie, LLB,
DipLP
GRAHAM, Madeleine Helen,
LLB(HONS), DipLP
HAMILTON, Laura Joy,
LLB(HONS), DipLP
HUNTER, James Euan,
LLB(HONS), DipLP
JOHNSTON, Louise Margaret,
LLB(HONS), DipLP
McDONALD, Jamie Thomas,
LLB(HONS), DipLP
MACRAE, Alison Louisa,
LLB(HONS), DipLP
MILLIGAN, Scott Stewart,
LLB(HONS), DipLP
MOLLEY, Michelle Margaret, BA,
LLB, DipLP
MUIR, James Robertson,
LLB(HONS), DipLP
NISBET, Sharon, MA, LLB, DipLP
O’NEILL, Ingrid De Quiroz,
LLB(HONS), DipLP
PHILLIPS, Andrew David,
LLB(HONS), DipLP
PLATTS, Claire Louise,
LLB(HONS), DipLP
POWRIE, Joanne Christina,
LLB(HONS), DipLP
RUTHERFORD, Elizabeth Jane,
LLB(HONS), DipLP
SMARTT, Graham Peter,
LLB(HONS), DipLP
VALLANCE, Hazel Francene Stuart,
LLB(HONS), DipLP
WOOD, Rosemary Kathleen,
LLB(HONS), DipLP
Professional practice Work placements
With so many law students on the traineeship trail, where
are all the assistants? Collette Paterson shares some ideas
from smaller firms who were finding it hard to recruit
Grow your
own assistant
The Society’s consultation on
benefit from having a trainee, and that
education and training, and CPD, will
helps at least one more Diploma
close on 9 February 2007. That is just
graduate.”
the start of a process to ensure the
Running in parallel with the
system becomes representative of the
Society’s own training register, which
majority. But the legal profession will
training firms and Diploma graduates
not stand still during this time, and as
register with, Kirklands have pioneered
we know there are issues as we embark
an all-encompassing clearing house for
on 2007. Can the profession address
traineeships and summer placements.
some of them, albeit reform could
Firms which might also be
be on its way?
interested in sowing the
Like chargeable hours,
seeds of assistantship can
assistants do not grow on
register. But other than the
trees. This is the harsh
urge to help the next
The Society
ing
reality facing the legal
generation of lawyers into
operates a train
ing
profession in Scotland.
the profession, what
register for train
a
om
pl
But with the profession
would be the drivers
Di
d
an
firms
unable to absorb the
behind a policy decision
graduates
hundreds of Diploma
to “grow” an assistant?
graduates exiting our institutions
each year, what is happening to the
Show me the assistants
profession’s new lawyers? If trainees are
Innes & Mackay in Inverness have
going into the wash and not coming
found themselves with no new blood,
out the other side, should the
but a bevy of highly qualified solicitors.
profession be looking at the bigger
Ian Clapham of the firm says: “We
picture – how to assist law students
needed to redress the balance, but we
(rather than trainees) with their
were finding it hard to recruit assistants
metamorphosis into capable and
– it is our perception that NQs are
enthusiastic assistants?
lured by the glamour of the big teams
in the big cities. So, despite the many
“Test-tube” assistants
challenges we are sure we will face as a
“Grow Your Own Assistant” was
training firm, we took the decision to
coined by Graham Gibson, partner
with Kirklands Law Ltd. Interested in
the numbers (that not everyone with a
Diploma gets a traineeship), the
situation puzzled him, but he did not
think Kirklands could do much to
help. That changed when Kirsty, a first
year law student, wrote to Kirklands
requesting work experience. “I had
always thought that we were too small
and too stretched to offer a trainee a
start. But having a capable law student
with us has changed my view. When
we have more office space my firm will
fyi
“I had always
thought that
we were too
small and too
stretched to
offer a trainee
a start. But
having a
capable law
student with us
has changed
my view”
Don’t miss
in this
section
How smaller firms
can cultivate their
future solicitors
28
Technology-related
legal roundup
30
recruit a trainee, and she started in
September 2006.”
Ian Clapham is under no illusions as
to the challenges. A good solicitor does
not always equal a good trainer, he
says, and there could be uncertainty
about the delegation and supervision
of work. Looking at it strategically,
however, he is in no doubt as to the
benefits of having a trainee. From their
freshly honed legal skills to their ability
to use IT, trainees offer training firms
ample opportunity to immerse them in
the firm’s culture and assess their
suitability for a post on qualification –
luxuries not available when recruiting
assistants.
If one thing is for sure, rural firms
want “good people” just as much as the
bigger players – not people who are
looking for an easy life, and critically
not trainees who will desert the
firm for the central belt posttraineeship. Innes & MacKay
will incentivise the postqualification
opportunities and
will aim to select
trainees who
want work in
the area. There will
always be an element of risk taking
this approach, but then the risk of
losing trainees applies to all firms.
However, with a more diverse range of
law graduates than ever before
emerging from 10 Scottish universities,
and with work-life balance becoming a
factor for young professionals
generally, perhaps the risk for firms like
Innes & Mackay is not as great as it
once might have been.
Ian Clapham also knows that the
antidote to this might be to take on
summer students, and is looking at
how going forward the firm might
Refreshing legal
risk crossword
32
instigate summer placements.
The student’s story
Kirsty knew that the larger firms might
not consider her summer placement
application until she had completed
third year. But with summer and
Christmas holidays, she worked at
Kirklands for almost six months
between first and third year. “I’ve
learned so much, and not just about
the law – about office life too. Six
months is an entire seat of a
traineeship!”
Kirsty says that an increase in the
number of placements would be music
to the ears of law students: “These days
students who genuinely want to enter
the profession are clued-up about the
importance of summer placements in
helping to secure those coveted
traineeships, and they are not too
concerned whether the placement itself
leads to one. The earlier any firm can
take us on during the LLB, the better.”
On the other hand, like others, she is
not convinced about the possibility of
compulsory placements for all law
students, which some have speculated
could come out of the consultation.
Although good in theory, firms would
have to absorb all law students,
including those who don’t plan to go
into the profession. She also questions
whether mandatory work placements
would falsely raise student expectation
about entry to the profession.
Training in-house
In-house solicitors make up 27% of the
profession, but the number of
traineeships is small in comparison.
Says Janet Hood, Chairperson of the
In-house Lawyers’ Group: “We have all
heard about the increasing number of
disappointed Diploma graduates, and
in-house lawyers obviously have a role
to play in this. It is the Group’s
responsibility to ensure that in-house
practitioners are properly informed of
the issues surrounding numbers.”
With HBoS deciding this year to
recruit trainees, Liz Campbell, Director
(Education & Training) at the Society
clears up any speculation about the
criteria for offering traineeships: “In
Scotland there is no requirement to
have particular breadth in a
traineeship. All the Society would ask is
that the employing solicitor makes it
clear to the prospective trainee when
recruiting that there will be exposure to
only one particular area of work. If a
firm or organisation has concerns
about the range of work it could offer a
trainee, they may wish to consider
arranging to share a trainee with
another firm or organisation. In this
way, responsibility for training would
be shared and the trainee benefits from
gaining a broader training base.”
Nothing to lose
Whilst summer placements may not be
linked to the traineeship recruitment
process, they offer much sought-after
exposure to legal life. A placement
might fuel the desire to enter the
profession, but equally it might force
some to re-evaluate their career plan.
With some LLB providers not yet
having produced graduates, it is almost
certain that the number of applications
for traineeships will continue to rise.
Nevertheless, as assistants continue to
play hard to get in Scotland, could
more work placements help to reduce
the number of law students who apply
for the Diploma and a traineeship, not
having first assessed their suitability for
the profession?
Small and medium sized firms and
in-house lawyers are not as well
represented at law fairs, and can be
dwarfed during the recruitment process
by bigger firms which can offer a much
glossier brochure to prospective
trainees. Grow Your Own Assistant
could just be the initiative needed to
source the people your organisation
wants. And whilst the profession can
pat itself on the back for taking this
lead, it is Scotland’s increasing number
of law students who will be grateful for
efforts to increase the availability of
summer placements and traineeships
to help them design their career paths.
It remains to be seen how the
profession views mandatory work
placements and alternative
Diploma/traineeship structures, and
having read this you may be minded to
take part in the Society’s consultation.
But as law firms across the country are
needing assistants now, many
potentially great assistants are
struggling to get into this profession
now. So, because the partner/trainee
ratio is not what you might think, and
because you might eventually be able
to attend one of the Society’s “Train the
Trainer” CPD events, this new year,
why not resolve at least to consider
“growing” your own assistant? To be
bold, summer placements and
traineeships allow parties to suss each
other out before committing to
ongoing employment – a win-win
situation, wouldn’t you say?
Collette Paterson is New Lawyers’
Coordinator at the Law Society of
Scotland
The Society’s consultation is still ongoing –
www.lawscot.org.uk/training/consult
Professional practice IT
Struan Robertson of OUT-LAW.COM, the online legal
service of international law firm Pinsent Masons, offers a
roundup of legal news with a technology flavour
On the radar
“Political” ad ban upheld
The 2003 Communications Act’s
banning of political adverts does not
violate rights to free speech, the High
Court has ruled ([2006] EWHC 3059
(Admin)). An animal rights pressure
group has lost its case, though it may
appeal to the House of Lords.
Animal Defenders International
(ADI) wants to advertise in broadcasts,
despite the absolute prohibition in the
Act on political advertising other than
controlled party political broadcasts. It
argued that the Act infringes its rights to
free speech and therefore breaches the
Human Rights Convention.
Charities are allowed to advertise if
their ads are not “wholly or mainly
political” in nature, according to the
Broadcast Advertising Clearance
Centre, which vets adverts for political
content. It ruled that the ADI campaign
“My mate’s a primate” broke the rules.
Political advertising was banned in
order to prevent wealthy political
interests from influencing the public
more than groups with less money
through TV advertising, which
Parliament believed was a more
powerful and influential medium than
others, such as newspapers.
“The necessity for restrictions on
political/social advocacy broadcast
advertising outside elections periods
has been convincingly shown”, Mr
Justice Ouseley wrote (at 125) in
rejecting ADI’s case. “It is necessary to
protect the rights of others through
preventing undue access to the
broadcast media based on willingness
and ability to pay. At root it supports
the soundness of the framework for
democratic public debate. The
broadcast media remain pervasive and
potent throughout the period between
elections.”
Lord Justice Auld said that the case
was made difficult by the lack of any
precedent regarding what should be
judged as “political” advertising. The
court, he said, would have to rely on
“its own resources”.
Auld said that the European
Convention did not provide a blanket
right to free speech in all situations.
“Article 10 does not provide absolute
protection for political speech. Nor
does it entitle any person or body to a
right of political expression over the air
waves” (at 62).
“I have come to the view that
Parliament in the context of the overall
scheme of the 2003 Act..., acted within
the ambit of the discretionary
judgment available to it in introducing
and maintaining the prohibition on
political advertising, and that there is
no basis for granting the declaration of
incompatibility sought by ADI”, he
ruled (at 81).
Tim Phillips, Campaigns Director of
ADI, said: “There is a considerable
inequity here, with government and
big businesses able to use the broadcast
media and their critics like ourselves
excluded.”
He added: “We believe that time will
show that in this case UK law is simply
The DPA:
“personal
data” defined
“Personal data”
means data which
relate to a living
individual who can
be identified– (a)
from those data, or
(b) from those data
and other
information which is
in the possession of,
or is likely to come
into the possession
of, the data controller,
and includes any
expression of
opinion...”
out of step with modern media practice
with hundreds of television channels,
and also our rights under the European
Convention on Human Rights.”
Court backs NHS data release
The Court of Session has backed the
Scottish Information Commissioner in
its first ruling on the Freedom of
Information (Scotland) Act. The
decision ([2006] CSIH 58) confirms
that the Commissioner was correct to
order the release of information from
the NHS’s Common Services Agency
(CSA).
Michael Collie made a request on
behalf of Chris Ballance MSP for
information about the number of cases
of child leukaemia in Dumfries and
Galloway, broken down by census
ward. The CSA refused on the basis that
the numbers involved were so small
that providing it would risk indirect
identification of individuals.
Collie referred the case to the
Commissioner, Kevin Dunion, who
ruled that the information could be
released as it was not personal data
under the Data Protection Act.
The CSA uses a method called
“barnardisation”, which is designed to
competing demands of freedom of
information legislation and data
protection laws. It is thought that a
major proportion of cases going to the
Scottish Information Commissioner
relate to the interaction between the
two codes.
“I am pleased at this landmark
decision,” said Dunion. “The court has
confirmed that authorities should not
take a narrow view of what
information should be provided and
has concluded that I have a wide
discretion to specify the form in which
information should be released.”
“In this case I accepted that raw data
should not be released, but I concluded
that the authority could and should
provide information in a modified
form. This would at least give some
indication of the incidence of
childhood leukaemia without any risk
to patient confidentiality.”
allow the release of data in a way that
does not identify individuals. This is a
system of modification which
randomly adds zero, plus one or minus
one to the numbers two, three and
four, and zero or one to the number
one when they appear in a database.
Named after George Barnard, Professor
of Statistics at Essex University,
Barnardisation is designed to disguise
people’s identities when information
consists of such low numbers.
The CSA appealed the
Commissioner’s ruling to the Court of
Session, where the Lord President
presided. That court ruled that the
Commissioner was correct.
“I have come to the view that a table
setting out the census ward data for
1990-2001 for the Dumfries and
Galloway postal area, barnardised in
the manner described, would not
constitute personal data of any of the
children resident in Dumfries and
Galloway who had in a relevant year
been diagnosed with leukaemia”, his
Lordship said (at 23).
“Although the underlying
information concerns important
biographical events of the children
involved, by the stage of the
compilation of the barnardised table
that information has become not only
statistical but perturbed to minimise
the risk of identification of any
individual child. It is no longer, in
respect of any child, ‘biographical in a
significant sense’,” he continued. “The
rights to privacy of the individual
children are not infringed by the
disclosure of the barnardised data.”
The case involved the seemingly
Free samples, dearer CDs,
proposes Gowers
Music will be sampled free of charge
and CDs will rise in price to
compensate for music that is copied to
iPods under a new intellectual property
regime proposed by Andrew Gowers in
December. But most of the UK’s laws
are adequate, he concludes.
The former Financial Times editor
was commissioned by Chancellor
Gordon Brown in December 2005 to
undertake an independent review of
intellectual property.
Press coverage focused on Gowers’
wish for a private copying exception
written into copyright law. Less well
publicised was that Gowers sees no
need for an accompanying copyright
levy. In France, Germany and many
other countries, private copying is
allowed but compensated by a tax on
blank media. The Copyright Directive
says member states can choose to
forbid private copying or allow it –
provided there is fair compensation for
right holders. Gowers believes that fair
compensation can be found another
way.
His report explains: “If rightholders
know in advance of a sale of a
particular work that limited copying of
that work can take place, the economic
cost of the right to copy can be
included in the sale price. The ‘fair
compensation’ required by the
directive can be included in the normal
sale price.” Thus CD prices would rise.
Gowers also revealed an ear for hip
hop. The report notes that hip hop
grew in the US in the late 1970s and
early 1980s because producers could
exploit a “transformative use”
exception in US copyright law. That
changed in 1991: a court ruling
narrowed the exception significantly, so
musicians had to “get a licence or do
not sample”.
The Beastie Boys released the album
“Paul’s Boutique” two years before that
ruling. All the sampling on the album
was uncleared. Gowers quotes the New
York trio’s reply when asked about the
changed regime: “we can’t go crazy and
sample everything and anything like
we did on ‘Paul’s Boutique’. It’s limiting
in the sense that if we’re going to grab a
two-bar section of something now,
we’re going to have to think about how
much we really need it.”
Gowers wants the EU’s Copyright
Directive amended to allow for an
exception for creative, transformative or
derivative works, provided this does not
conflict with the normal exploitation of
the original work and does not
unreasonably prejudice the legitimate
interes of the rights holder.
Watchdog raps talkSPORT’s blogging
Radio station TalkSPORT has been
censured by the UK’s advertising
watchdog for placing advertising on
football blogs that pretended to be
normal blog postings, an activity
known as comment spam.
The Advertising Standards Authority
(ASA) found that a member of
talkSPORT staff had sent a post on to a
number of football related message
boards that purported to be a normal
communication from a fan.
“Fellas,” read the posting. “Have you
heard what talksport radio are doing
this season. They are recruiting a fan
from every club in the premiership and
football league, 92 fans in total who
will become the voice for their club on
their station.”
“Those selected will get a free copy of
FIFA 07 from EA Sports on whatever
platform you wish. At the end of the
day it basically gives you the chance to
be on air regularly throughout the
entire football season and it might even
get you on the first step to a new
career. I just hope we get someone who
knows what he is talking about.”
The tactic, which is akin to
spamming, runs the risk of breaking the
CAP Code, the rulebook followed by
the ASA. It states that adverts must
clearly be labelled as such.
TalkSPORT said that a member of its
staff had made the posting, but that it
was not the policy of the station to act
in this way and that the member of
staff had acted independently. The
complaint against the station was
upheld.
“The ASA noted talkSPORT radio had
not intended the weblog postings to be
part of their advertising campaign but
the ads had, nonetheless, been placed
by a member of their staff,” said the
ASA ruling. “We acknowledged the
measures taken to avoid mistakes of
this sort happening in the future, but
concluded that, because the ads had
not been clearly identified as such,
talkSPORT radio had breached the
Code. The ads breached CAP Code
clauses 7.1 (Misleading) and 22.1
(Recognising marketing
communications and identifying
marketers).”
Professional practice Risk management
A novel exercise this month from Marsh, to see how much
you remember of last year’s articles – with some bubbly
on offer for the first correct entry
Refreshing Risk
Crossword
Crossword
entries
should be
sent:
As always, the new year will
inevitably bring new risks and present
new risk management challenges.
However, the fundamental risk issues
and challenges remain fairly
consistent year on year and there is
much to be gained from reviewing
the issues addressed and the risk
improvements you achieved over the
course of the last 12 months.
To encourage you to review last
year’s Journal articles and to consider
how you have addressed the risk
issues identified and the risk
improvements suggested, we
challenge you to complete the
crossword opposite. If you are up for
the challenge and submit the
completed crossword (address for
entries opposite), there is a prize of a
magnum of champagne on offer to
the first correct entry out of the hat.
The clues which mention a month
refer to the content of articles during
the course of 2006.
Hopefully 2007 will prove to be a
profitable, claims-free year for you.
During the course of the year, this
column will be identifying further
risk issues and offering suggestions
for risk improvement. At the end of
the year, it will again challenge you
with the question – what have you
done to improve your risk
management over the past year? You
have been challenged.
Alistair Sim and Marsh
Alistair Sim is a Director in the FinPro (Financial
and Professional Risks) Practice at Marsh, the
world’s number one risk specialist. To contact
Alistair, email: [email protected] .
The information contained in this article
provides only a general overview of subjects
covered, is not intended to be taken as
advice regarding any individual situation
and should not be relied upon as such.
Insureds should consult their insurance and
legal advisers regarding specific coverage
issues.
Marsh Ltd is authorised and regulated by
the Financial Services Authority.
by post to:
Alistair Sim, Marsh
Ltd, Orchard Brae
House, 30
Queensferry Road,
Edinburgh EH4
2HS; LP1
Edinburgh 15; DX
539940 – 19
Or by email to:
alistair.j.sim@
marsh.com
Or by fax to:
0131 311 4268
The draw will be
made on 20
February 2007.
The decision of
Marsh on the
winning entry
will be final.
keeping a record of claims, complaints and ‘near
misses’ so that they can be analysed and lessons
learned (May)
Crossword
23. Particularly in the era of the paperless office, a
reliable one of these is essential – otherwise you
won’t just get your clients’ backs up (August)
25. An aide memoire to prompt systematic
consideration of issues that might otherwise be
missed or overlooked (March, May, November)
26. This could happen to the self-insured amount if
critical dates keep being missed (March)
29. The best risk management tool? (April)
DOWN
1. Who didn’t understand 3 down? (June)
3. ______/____ describes the basis of cover under a
PII policy; it means that the relevant cover is the
cover in force at the time a claim is intimated to the
insured practice (6, 4) (June)
5. Working in one of these doesn’t sound appealing,
certainly not conducive to effective risk management
(September)
6. This is an example of a new way of doing work for
clients that may involve different risks for your firm
(December)
7. This team can help with all sorts of risk
management guidance and training (February)
11. If only the firm had defined and explained to the
client the ——- of the engagement, B & Co would
have been in an even stronger position to answer
Mr A’s allegations (July)
12. This kind of bar is not a pleasant experience
(March)
ACROSS
2. Put another way it’s a yardstick or point of
reference against which to assess a firm’s risk
management performance or improvement (May)
4. One of these was issued in March highlighting the
risks associated with the issue in 13 down (March)
8. The expectations of this client might have been
more effectively managed by an explanation at the
outset of the timescale for the winding up of his
aunt’s estate (July)
9. This partner typically remains unconvinced of the
benefits of the firm’s systems and procedures and
refuses to adopt them (September)
10. The various risks involved in property
transactions was the issue in this issue
11. Training in these skills doesn’t sound hard and,
according to the December article, this is an
important element of improving the effectiveness of
firms’ risk management (December)
14. The best, the only type of letter of obligation
(November)
16. Conversion of a partnership to LLP means that
the partners of the partnership can avoid joint and
several liability for any negligence that occurred in
the partnership prior to conversion – True? (June)
17. You certainly need to be clear of your facts when
you are giving one of these (November)
19. The degree of tolerance to be allowed when
monitoring compliance with Client Communication
Practice Rules or Money Laundering Regulations?
22. This isn’t firewood. It’s just a practical way of
13. When handling the executry of this kind of
tenant, your engagement, diarying and other
procedures need to cater for the risk of missing a
21 day time limit (March)
14. Electing to proceed on this basis (for Master
Policy purposes) will mean that a merged practice’s
continuing cover will cover claims arising out of premerger negligence in the constituent practices (June)
15. If this colleague had only made a clear file note,
Thorpe would have known to take timely action to
exercise the option to purchase (October)
18. Acronym for Update’s annual series of risk
management events at venues around the country in
April, May and June each year (August)
20. Something to aim for – perhaps to reduce the
number of missed critical dates or fee related
disputes (February)
21. Be bald, not something solicitors should ever do
(March)
24. Failing to do this is often said to mean that you
are “planning to fail”. One of these would have
helped you achieve your risk management objectives
during 2006 (February)
27. This is the trend you will want to see in your
practice’s loss ratio in 2007 and beyond (February)
28. This may be the best response to a new
instruction if you consider you lack the capability or
capacity to satisfy the client’s requirements
30. This is the trend you will want to see in your
practice’s low claim premium discount in 2007 and
beyond (February)
Professional briefing Civil court
In his latest roundup from the civil courts, Sheriff Lindsay
Foulis discusses a failed attempt to recover precognitions
referred to in an expert’s report, and what happened after
an agreement to settle an irrelevant summary cause
Status of the
expert’s report
Recovery of documents
A number of issues arose in the recent
decision of Lord Carloway in
Whitehead’s Legal Representative v
Douglas [2006] CSOH 178; 2006
GWD 37-737. In a reparation claim
the pursuer had lodged two reports.
The accident reconstruction report
from an English specialist and a
psychologist’s report both referred to
precognitions which had been
forwarded to the authors of the
reports to enable them to prepare
their reports. The defenders sought to
recover these documents referred to
in the reports. The basis for the
application was, first, that it was the
duty of an expert to disclose all
sources of information to enable the
opinion reached to be tested.
Secondly, by revealing part of the
content of the documents in the
reports, any privilege had been
waived. Finally, any precognitions
which had been used by the experts
for the purpose of preparing the
report could be put to the expert to
test the conclusion reached in a
report.
Before dealing with these points
Lord Carloway made an observation
relating to documents which are
founded on and those which are
simply used at proof. The reports fell
into the latter category and there was
no obligation to lodge them in terms
of any rule of court relating to
documents founded on in the
pleadings. Documents which fall into
the former category and which have
to be produced in terms of such a
rule, namely RCS, rule 27.1(1) or
OCR 21.1, are documents upon
which an action is based and are
founded on in the averments by
incorporation or quotation, for
instance a contractual document.
Whilst the evidence of experts may be
crucial, their reports do not fall
within that former category. Indeed
they may not even require to be
lodged as productions, although to
do so may be of assistance to the
expert and gives the other side notice.
Lord Carloway observes that no
mention, quite correctly, is made of
the reports in the pleadings. Pleaders
in the sheriff court please note. I do
not know how often I see medical
reports in such actions incorrectly
being incorporated brevitatis causa in
pleadings! His Lordship indicated
that the report itself was not evidence
and there was no absolute right to
the material which might have been
used to reach the opinion in the
report. If the report disclosed certain
real evidence then such evidence
might be recoverable. Likewise if it
disclosed other witnesses, they could
be precognosced. His Lordship
observed that there was no
obligation on an expert to disclose
the sources of his information upon
which his opinion was based. The
fact that parts of the documents
provided to the expert had been set
out in the reports did not amount to
waiver. The documents produced to
the expert might simply have been
listed in the report. Testing an
expert’s opinion in court was
properly carried out in a number of
ways, such as undermining the basis
upon which the opinion was
founded.
Update
Since the last article
Anglo Dutch
Petroleum
International Inc v
Ramco Energy plc
(March article) has
been reported in
2006 SCLR 647.
Interim interdict
A recent decision from Sheriff
Principal Lockhart in Duff v Kiel 2006
GWD 39-759 reiterates the
prerequisites for such an order. The
pursuers had been granted interim
interdict against the defenders from
demolishing certain buildings. The
defenders had been granted
permission from the appropriate
authority to demolish the buildings.
The sheriff principal reiterated that
before such an order could be made
there required to be a prima facie case.
This involved a wrong being
committed or apprehended and a
right, title, and interest to sue vesting
in the pursuer. The fact that the
defenders had planning permission
indicated that no wrong was being
committed. The pursuers further had
no title etc to sue. There was no legal
relation between the parties which
was being infringed. It is only after a
prima facie case was made out that the
balance of convenience entered the
equation.
Actions of ejection
In an action of ejection against a
squatter it is not necessary for the
pursuer to be infeft. This was the
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decision reached by Sheriff Principal
Taylor in Blackburn v Cowie, Glasgow
Sheriff Court, 24 May 2006. Sheriff
Principal Taylor further decided that if
a permanent trustee was successful in
persuading a court to dispense with
the bankrupt’s spouse’s consent to the
sale of the family home, then in the
event of the spouse failing to vacate
the property, in any resultant action
of ejection the court has regard to
exactly the same considerations
which applied when the consent was
dispensed with.
Antisocial behaviour orders
In Aberdeen City Council v Fergus 2006
GWD 36-727 Sheriff Principal Young
confirmed that in considering whether
an interim order should be made, the
court undertook a two stage test. The
court requires to be satisfied, first, that
the person was engaged in antisocial
behaviour, and secondly, that an
interim order should be made. In
looking at this matter, no particular
standard of proof is applicable. The
second stage requires the sheriff to
consider all relevant matters, ignore
irrelevant matters, correctly apply the
law and come to a decision which is
reasonable.
Summary causes
An interesting point arose in Dale v
Lets Glasgow Ltd, Glasgow Sheriff
Court, 24 November 2006. The
statement of claim did not disclose a
legal basis of claim and was
accordingly irrelevant. The defenders
prior to the calling had intimated a
defence to the action. At the calling in
terms of summary cause rule 8.2 the
sheriff was advised that settlement
had almost been achieved and
accordingly the parties were allowed a
short time to agree a figure. After the
short adjournment the parties
intimated that settlement had been
agreed at a specific figure. The case
was continued for settlement to be
implemented. Settlement was not
achieved and indeed there was a
subsequent denial that settlement
had been agreed. A proof was
assigned. At the proof diet the sheriff
who had presided when settlement
was agreed, was assigned to hear the
proof. The sheriff recalled the case
and granted decree in light of the
settlement having been previously
agreed. The defenders appealed to
Sheriff Principal Taylor. One
observation made by the sheriff
principal was that if there was a
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dispute as to whether settlement had
been agreed, then rather than a proof
being fixed a minute should have
been lodged setting out the basis for
the claim that there had been a
settlement, with answers being
lodged.
It was argued by the defenders that
as the statement of claim was
irrelevant, any agreement to settle was
based on error. Accordingly any such
settlement could not be given effect to
by the court. The sheriff, in granting
decree, had however done this. Sheriff
Principal Taylor refused the appeal.
The parties had reached an
extrajudicial settlement and had
intimated that to the court. They were
bound by that. The fact that the
summons had been irrelevant was of
no consequence.
The sheriff principal made the
observation that as the parties had
intimated at the first calling that
settlement was close, and after a
brief adjournment had intimated
that settlement had been agreed,
there had been no obligation on the
sheriff to undertake the duties
imposed in terms of rule 8.3(2). I
think, from a practical point of
view, that is correct. If when a
summary cause/small claim first
calls, the parties indicate that
settlement may be achieved, it is
unlikely that a sheriff will look at
the statement of claim to ascertain
its legal soundness! I would simply
observe, what happened at the
continued calling? Should not the
sheriff then have undertaken the
duties in terms of rule 8.3(2)? If
that had occurred, would the
summons not have been dismissed
in terms of rule 8.3(3)(c)? That
perhaps is the sermon of perfection,
one of the problems with the
proper operation of rule 8.3(2)
being simply that the time
potentially required to do the job
properly is normally not available!
Expenses
In Hodge v Hodge, Lanark Sheriff
Court, 28 November 2006, Sheriff
Principal Lockhart considered that an
award of expenses against the pursuer
in respect of a divorce proof was
justified having regard to the
reasonableness of the parties’ claims,
the extent of cooperation and
disclosure by the parties and
subsequent agreement, the offers
made, the extent to which a proof
could have been avoided, and the
final outcome.
The usual caveat applies. Belated
best wishes for 2007.
Professional briefing Employment
The ECJ decision in Cadman v Health and Safety
Executive (C-17/05) will be welcomed by employers
whose pay systems recognise experience measured
by length of service
Rewarding experience
The five
year mark:
reg 32(2)
Where length of
service exceeds five
years, it must
reasonably appear
to the employer
“that the way in
which he uses the
criterion of length of
service... fulfils a
business need of his
undertaking” (for
example by
encouraging loyalty
or motivation,
rewarding
experience...)
Despite the Age Equality Regulations,
many employers have continued with
such systems either through delay in
reacting to the new law, or in line with
the regulations which permit length of
service to be rewarded without further
justification for service up to five years.
Mrs Cadman, an inspector with the
Health and Safety Executive for almost
five years, lodged an application under
the Equal Pay Act 1970, alleging that
four male inspectors were paid
substantially more. These comparators
had longer service than Mrs Cadman,
acquired, in part, in more junior
posts.
The employment tribunal held that
Mrs Cadman had been treated less
favourably than the four comparators.
The HSE appealed to the Employment
Appeal Tribunal which, following the
Danfoss case (190/88) [1989] IRLR
532), overturned the tribunal and held
that where unequal pay arose through
using length of service as a criterion, no
special justification was required.
Mrs Cadman appealed to the Court
of Appeal, which considered that, in
the circumstances, the use of length of
service as a determinant of pay had a
disproportionate impact on women.
The court was uncertain, however,
whether case law since Danfoss had
departed from it. It sought a
preliminary ruling from the ECJ on the
questions (1) whether,
where such a disparate
impact arose, article
141 of the EC Treaty
required the
employer to
provide special
justification
for recourse
to that
criterion;
and (2)
whether the
answer to (1) would be different
if the criterion was applied by
assessing employees
individually.
Legitimate objective
The ECJ recognised that “the use of
length of service as a determinant of
pay plays an important part in the
continuing, albeit slowly narrowing,
gap between female and male
workers”. Referring to Danfoss, the
court acknowledged that rewarding
experience which enables the worker
to perform his or her duties better,
constitutes a legitimate objective of
pay policy. In its view, “length of
service goes hand in hand with
experience, and experience generally
enables the worker to perform his
duties better”. As a result, an employer
is free to reward length of service
without having to establish the
importance this has in the
performance of the specific tasks
entrusted to the employee.
More equivocally, however, the ECJ
went on to note that Danfoss did not
exclude the possibility that there may
be situations in which recourse to the
criterion of length of service must be
justified by the employer in detail
–particularly where the employee
supports any challenge with evidence
capable of giving rise to “serious
doubts” as to whether length of service,
in the circumstances, is in fact
appropriate to attain the objective of
rewarding experience.
Raising doubts
What will constitute “serious doubts”
remains to be clarified. In the writer’s
view it may well, generally speaking,
be difficult for employees to raise
sufficient doubts where shorter periods
of service are concerned. That said, one
can envisage situations where an
employee may well be able to establish
that, after a certain initial period,
comparable employees do not
improve their abilities regardless of
their length of service or experience.
With longer periods of service, it
would become far easier for employees
to raise sufficient “doubts”.
The ECJ also stated that “where a job
classification system based on an
evaluation of the work to be carried out
is used in determining pay, it is not
necessary for the justification for
recourse to a certain criterion to relate
on an individual basis to the situation
of the workers concerned”. Effectively,
therefore, there is no need to show in
this context, that an individual worker
has in fact acquired experience during
the relevant period, which has enabled
him to perform his or her duties better.
The ECJ stated the nature of the work
to be carried out must be considered
objectively.
In the writer’s view, this raises
something of a potential paradox
where an employee seeks to raise
“serious doubts” by establishing that a
comparator has not in fact acquired
any additional experience or ability
from the length of service which the
employer has acknowledged through
increased pay. This would be a matter
of evidence but is surely at least a
possibility.
It is submitted that the ECJ’s
judgment is consistent with the
approach adopted by the government
in relation to service-related benefits
under the Age Equality Regulations. As
noted, the regulations do not require
employers to justify reliance on length
of service up to five years as a criterion
for determining benefits. Beyond that,
any reference to length of service
required to attain a benefit must
reasonably appear to the employer to
fulfil a business need.
It is not, however, too great a leap
to envisage situations for employers
to be aware of where shorter service
than five years does not make a
significant difference to an employee’s
ability to perform their role. Those
situations may well require special
justification in respect of any equal
pay claims.
John Lee is a solicitor advocate with
Scottish Engineering, specialising in
employment law representation
Professional briefing Insolvency
Restructuring
– in hindsight
A recent English decision provides a warning on how a fairly neat restructuring
can unravel following a company’s insolvent liquidation
In Re Oval 1742 Ltd [2006] All ER (D)
creditor raised proceedings claiming
57, O granted a fixed and floating
payment out of the initial and deferred
charge over its business and assets to
consideration monies in priority to the
The Royal Bank of Scotland. In August
bank, by reason of s 196 Companies
2002, O sold certain assets to two
Act 1985 and/or s 175 Insolvency Act
subsidiaries (the “422 companies”).
1986.
The share capital in these companies
Section 196 applies only to
was then sold to a third party. The
companies registered in England and
consideration payable by the
Wales, and, as amended, provides that
companies was an initial amount on
if, when a company is not being
completion, and the balance as they
wound up, possession is taken by or on
realised book debts transferred to
behalf of the holders of a debenture
them. If the deferred consideration was
secured by a charge which was, as
not paid in full by November 2002, it
created, a floating charge, preferential
was to be reduced by £1 for each £1 of
debts are to be paid out of the assets in
book debts still unrealised, which debts
priority to the chargeholder.
were to be assigned to the bank.
Section 175 provides for the
The consideration was to be paid to
payment of preferential debts in
O’s solicitors, who separately
priority to all other debts and as
undertook to remit to the
to the ranking of preferential
bank the consideration
debts in a winding up.
less certain retentions
ence
until the bank’s
Analysis: substance
Whilst the prefer
was
s
bt
de
n
ow
for Cr
indebtedness was
not form
abolished by the
discharged. In exchange
The judge analysed the
,
02
Enterprise Act 20
for this undertaking the
transactions in detail and
e
m
so
there remain
bank released the assets
closely
scrutinised the
s
preferential debt
transferred to the 422
release by the bank. She
companies from its security, to
emphasised the fact that a
the extent necessary to enable these to
specific release was requested from the
be sold free of the charge.
bank, believing that this was because
The initial consideration was paid
O’s directors anticipated crystallisation
and remitted. Early in September O’s
of the charge. It seems to the writer that
shareholders passed a resolution to
the sale to the 422 companies could
wind up the company. Subsequently
not have been categorised as a sale in
some deferred consideration was paid
the ordinary course of business and
to O’s solicitors and remitted. It was
would likely have been a breach of the
unclear whether part or all of that sum
floating charge without bank consent.
had been received prior to the date of
The judge then held that the asset
winding up. In 2003, the 422
transfer created a contractual debt
companies assigned to the bank their
owed to O by each of the 422
rights to the unrealised book debts. The
companies, which debts therefore
bank received a further sum on
formed part of the property charged.
realising these.
She held that payment to the bank at
this stage amounted to “taking
The claim of taking possession
possession” for the purposes of s 196.
HM Customs & Excise as preferential
The substance rather than the form of
fyi
Section 175
would operate
to the benefit
of preferential
creditors
in such a
situation if the
reorganisation
were followed
by a winding up
the transaction was the key issue, and
in substance the bank was realising its
security. The deferred consideration
was also caught by s 196 or s 175, the
only substantive difference between the
sections being that how the charged
assets came to be realised under s 175
was irrelevant. The 422 companies paid
the deferred consideration in discharge
of debts charged to the bank. The bank
was realising its security over these
monies. The provision to reduce the
debts if not realised did not affect the
analysis.
The judge held however that the
assignation of the outstanding debts to
the bank was materially different. The
sums were due by the 422 companies,
not by O. The bank did not have a
charge over the debts of the 422
companies and the preferential
creditors had no claims over receipts by
the bank from the debts assigned to it.
The scope of s 175
It is relatively easy to envisage that the
hivedown of certain assets and
business was attractive to a third party
purchaser and would realise greater
value. It is equally straightforward to
imagine the bank wishing to ensure
that if it agreed to such a transfer, its
exposure was also reduced. Presumably
those involved did not see the
transaction as a realisation of the
bank’s security. Whilst the preference
for crown debts was abolished by the
Enterprise Act 2002, there remain some
preferential debts. While s 196, as
noted, applies only to English
registered companies, s 175 would
operate to the benefit of preferential
creditors in such a situation if the
reorganisation were followed by a
winding up.
Alistair S Burrow, Tods Murray LLP
Professional briefing Evidence
Lord Macphail introduces the new court rules on hearing
evidence and submissions in civil cases by live TV or
audio link, the result of joint work by the Court of Session
and Sheriff Court Rules Councils’ IT Committees
Court rules catch up
with live link IT
A new rule permitting the giving of
evidence and the making of
submissions by a live audio or
television link has been enacted for
civil proceedings in the Court of
Session and the sheriff courts. The rule
is in identical terms for both courts,
and allows a party to apply for
authority for the whole or part of the
evidence of a witness or the party to be
given, on cause shown, through a live
link. The rule also applies to oral
submissions by a party or his or her
legal representative, including oral
submissions in support of a motion.
The rule has been made on the
recommendation of the Information
Technology (“IT”) Committees of the
Court of Session Rules Council and the
Sheriff Court Rules Council. The terms
of reference of the Court of Session
committee are: “To make
recommendations to the Rules Council
on rules relative to the use of
information technology in Court of
Session procedure.” The sheriff court
committee has a similarly broad remit.
The committees now hold regular joint
meetings under the chairmanship of
Lord Macphail and Sheriff Iain
Peebles QC.
Trust and discretion
The committees considered that in
some cases it would be advantageous
to allow the court to obtain evidence
by live link where that would save time
and expense, or would for any other
reason be preferable to a commission
to take evidence, without detriment to
the interests of justice. In deciding on
the form of the new rule, the
committees concluded that it would be
best to have a simple rule which left it
to the court to decide in its discretion
whether to allow the use of a live link
and, if so, to impose such conditions as
it thought fit.
In England and Wales there is a
simple rule on the taking of evidence
through a video link
(“videoconferencing” or “VCF”) or by
other means. That rule is accompanied
by a fairly elaborate practice direction
on the taking of evidence by VCF
which contains guidance for judges
and practical advice for practitioners.
The committees decided, however, that
at this stage at least, practice notes in
similar terms would not be necessary
in Scotland. The committees
understand that in practice the
experience south of the border has
been that normally the taking of
evidence by VCF is comparatively
straightforward. They therefore think
that in Scotland the regulation of any
necessary details in any given case may
safely be left to the good sense of the
judge or sheriff, after hearing parties on
the arrangements proposed by the
party applying for the use of the live
link.
What the rule says
The rule is in these terms:
“(1) On cause shown, a party may
apply by motion for authority for the
whole or part of– (a) the evidence of a
witness or the party to be given; or (b)
a submission to be made, through a
live link.
“(2) In paragraph (1)– ‘witness’
equipment, but the arrangements to be
means a person who has been or may
made at the “far end” of the link are a
be cited to appear before the court as a
matter for parties, subject to the
witness; ‘submission’ means any oral
approval of the judge or sheriff.
submission which would otherwise be
Guidance is available on the SCS
made to the court by the party or his
website (see the above link). A test of
representative in person including an
the equipment should be arranged for
oral submission in support of a
the day before the case is due to be
motion; and ‘live link’ means a live
heard, to ensure that the equipment
television link or such other
will function correctly and to allow
arrangement as may be specified in the
parties an opportunity to familiarise
motion by which the witness, party or
themselves with the facilities.
representative, as the case may be, is
Any practitioner requiring further
able to be seen and heard in the
information about the availability and
proceedings or heard in the
use of courtroom
The committees videoconferencing
proceedings and is able to
think that in
see and hear or hear the
equipment should contact
proceedings while at a place Scotland the
the Electronic Service
regulation of
which is outside the court
Delivery Unit (ESDU) at
any necessary
room.”
1 Mart Street, Saltmarket,
details in any
Glasgow G1 5NA
They have the technology given case may (e: [email protected];
Practitioners wishing to use safely be left to
t: 0141 559 4590; fax: 0141
the good sense 559 4585).
a live television link may
of the judge or
take advantage of the
videoconferencing facilities sheriff, after
Wider issues
hearing parties In addition to framing the
which have been installed
in every High Court
live link rule, the committees
location and in many of the
have been examining other
larger sheriff court buildings. A full list
ways in which IT could be used in the
of locations is available on the SCS
civil courts. They are convinced that the
website (www.scotcourts.
carefully devised use of IT is now
gov.uk/resources/courtroomtech/
essential to the efficient and
courtroomtech.asp).
economical delivery by the civil courts
The standard installations consist of
of the services they offer to the public.
four flat-panel monitors each with a
By means of IT there is scope for
camera mounted above the screen,
significant reductions in delay and
together with a videoconferencing unit
expense, the improvement of access to
and a main control unit, all of which
justice, and the formation of a modern
are situated in the courtroom. The
and forward-looking system of civil
judge or sheriff has complete control of
procedure.
the equipment at all times. By this
In particular, the committees
means the court can take the evidence
consider that a system should be put in
of a witness who is present at any
place for the electronic submission and
suitably equipped remote location if
transfer of documentation in civil court
the judge or sheriff hearing the case is
proceedings. Their view is that in
satisfied on cause shown, in terms of
principle all papers for court cases –
the new rule, that the witness’s
pleadings, motions, minutes,
evidence should be given in that way.
interlocutors, documentary
These courthouses also have a
productions and the like – should be
witness room in which a further screen
able to be transmitted to and from the
and camera are installed. That witness
court in electronic form, stored
room may be used to enable a witness
electronically, and be available to the
to give evidence to any remote court
judge or sheriff and to the parties’ legal
(either in Scotland or elsewhere) or
advisers in electronic form. The
indeed to a court sitting in the same
experience of other jurisdictions
courthouse. If the court to which the
comparable in size and character to
witness is to give evidence is in
Scotland, which are already using IT in
Scotland, the presiding judge or sheriff
this way, shows that such arrangements
again must be satisfied as above.
are perfectly feasible. The essentially
paper-based regime which we have had
Operational matters
for so long in the Scottish courts is
The videoconferencing facilities are
coming to seem a quaint anachronism.
available free of charge for use by any
Together with many other members of
court practitioner, subject to the
the legal profession, the committees
approval of the court, and under such
hope that significant progress will soon
conditions as it may see fit to impose.
be made towards the introduction of IT
SCS staff will operate the in-court
in the civil courts.
Brian Dempsey’s monthly
survey of consultations that
might be of interest to
practitioners
… the point is
to change it
The holly and the leylandii
Are your clients still fighting over high hedges? It is
arguable that the Executive has failed to meet the need
for more user-friendly remedies in this matter following a
mixed response to its consultation in 2000. Attempts
were made to include greater regulation of “troublesome
hedges” by amending the Planning etc (Scotland) Bill
2006 but these were unsuccessful.
Now Scott Barrie MSP proposes similar measures to
those introduced in England and Wales by way of Part 8
of the Antisocial Behaviour Act 2003 which, he says, are
working “reasonably well”. It would place the emphasis
on the local authority, which would seem to be
appropriate for a number of reasons. Mr Barrie’s option
2 would involve the creation of a new type of summary
cause action.
See the consultation document at
www.scottish.parliament.uk/business/bills/pdfs/
mb-consultations/HighHedges(Scotland)
BillConsultation.pdf .
Respond by 21 February to scott.barrie.msp@
scottish.parliament.uk or Hedge Consultation,
Room M4.02, Scottish Parliament, Edinburgh EH99 1SP.
Gambling costs
The Gambling Act 2005 is to be fully implemented from 1
September 2007 and Scottish Ministers have to set fee
levels for gambling premises’ licences and permits.
Licensing boards will be responsible for dealing with
casinos and bingo clubs, as well as unlicensed family
entertainment centre gaming machine permits;
registration of small society lotteries; club gaming permits;
and licensed premises gaming machine permits.
The specific proposed fees are set out in various tables –
see the paper at www.scotland.gov.uk/Resource/
Doc/159654/0043422.pdf .
Respond by 2 February to [email protected].
gov.uk, or Ken McKenna, Local Governance and Licensing
Division, Mail Point 32, 3-H South, Victoria Quay,
Edinburgh EH6 6QQ.
Briefly
Readers are reminded of the Scottish Law Commission’s
consultation on the nature of trusts, detailed in the
December column. That closes on 31 January: see
www.scotlawcom.gov.uk/downloads/dp133_trusts.pdf .
Also, of course, the Law Society of Scotland’s consultation
on legal education: see www.lawsocietyofscotland
.org.uk/training/consult/Introduction.aspx .
Professional briefing Discipline tribunal
This month’s cases deal with delay in registration, conflict
of interest and failure to honour an undertaking
Scottish Solicitors
Discipline Tribunal
Martin John Carey
some very considerable health
A complaint was made by the Council
pressures and accepted that the
of the Law Society of Scotland against
failures to record deeds resulted from
Martin John Carey, Scullion &
these pressures. The Tribunal therefore
Company, Solicitors, 5 Church Street,
considered that in the circumstances
Hamilton (“the respondent”). The
these failures were at the lower end of
Tribunal repelled the respondent’s
the scale of professional misconduct.
preliminary pleas of mora and
The Tribunal also took into account
personal bar and found the
the lengthy period of time since these
respondent guilty of professional
failures occurred and considered that
misconduct in cumulo in respect of
in all the circumstances a fine would
his unreasonable delay in recording or
not serve any purpose and a lenient
registering title deeds in favour of his
penalty was appropriate.
clients, his unreasonable delay in
recording or registering standard
Richard James Barber Hill
securities in favour of lenders and his
failure to act in accordance with the
principles set forth in article 5(e) of
Richard James Barber Hill, solicitor,
the Code of Conduct for Scottish
Messrs Stevenson & Johnstone
Solicitors 2002 in that he did not
Solicitors, Bank of Scotland Buildings,
communicate effectively with clients.
Langholm (“the respondent”). The
The Tribunal censured the
Tribunal found the respondent guilty
respondent.
of professional misconduct in respect
The Tribunal did not accept that a
of his failure to advise his client to
letter from the Society
seek independent advice, his
should be interpreted as
acting for two parties in the
closing matters in
knowledge that their
connection with this
interests conflicted, and his
s
se
ca
For findings on
complaint. The
preparing a document
95
19
ce
sin
decided
Tribunal was of the
which was adverse to his
l’s
na
bu
Tri
e
th
it
vis
view that the
client’s interest and
at
e
websit
respondent had not had
presenting it to her for her
k
.u
rg
.o
dt
ss
w.
ww
his position materially
to sign and his failure to
altered nor had it been
advise her to obtain
materially prejudiced by the
independent legal advice before
alleged delay. The Tribunal did not
signing it. The Tribunal censured the
consider that the time delay in itself
respondent and directed in terms of
[about two and a quarter years during
s 53(5) of the Solicitors (Scotland) Act
which the Society was attempting to
1980 that for a period of three years,
rectify the conveyancing – Editor] was
any practising certificate held or issued
sufficient to sustain a plea of mora.
to the respondent shall be subject to
The Tribunal was of the view that
such restriction as will limit him to
failure to record deeds timeously
acting as a qualified assistant to such
amounts to professional misconduct.
employer as may be approved by the
In this case the respondent’s failures
Council or the Practising Certificate
put the various purchasers and lenders
Committee of the Council of the Law
at risk and in cumulo amounted to
Society of Scotland.
serious and reprehensible conduct as
The Tribunal considered that this
defined in the case of Sharp. The
was a very unfortunate case. The
Tribunal noted that when the failures
respondent appeared to have had
occurred the respondent was under
tunnel vision with regard to getting
fyi
The respondent
was acting for
Mr & Mrs A
and he had
prepared a
document
which he took
to Mrs A which
she signed,
giving up
rights, the
extent of
which he did
not know
the sale and purchase transactions
concluded. After having heard
evidence the Tribunal was satisfied,
beyond reasonable doubt, that the
respondent’s conduct amounted to
professional misconduct. The
respondent was acting for Mr & Mrs A
and he had prepared a document
which he took to Mrs A which she
signed, giving up rights, the extent of
which he did not know. The Tribunal
considered that she was not given
proper advice by the respondent and
she was not able to give informed
consent. The respondent also
appeared not to be fully familiar with
the Law Society’s Guidelines on Acting
for Separated Spouses, or the
Solicitors (Scotland) Practice Rules in
connection with conflict of interest.
The Tribunal took account of the
respondent’s long unblemished
career in the profession and had
sympathy for the respondent, but had
to consider the importance of
protection of the public. In this case
the respondent’s client had suffered
actual and substantial prejudice. The
Tribunal had to ensure that nothing
like this happened again. The
Tribunal accordingly imposed a
restriction on the respondent’s
practising certificate.
James Morrison
James Morrison, solicitor, 156 Station
Road, Shotts (“the respondent”). The
Tribunal found the respondent guilty
of professional misconduct in respect
of his failure to honour an
undertaking given by him to a fellow
solicitor to register a standard security.
The Tribunal censured the
respondent.
Although the respondent had pled
guilty to professional misconduct, the
Tribunal had to consider whether the
respondent’s conduct was sufficiently
serious and reprehensible so as to
amount to professional misconduct.
Given that the respondent accepted
that at the time he did know of the
undertaking he gave to Caesar &
Howie and given that he did not tell
them that he could not record the
standard security, the Tribunal found
that the respondent’s conduct did
amount to professional misconduct.
The Tribunal however recognised that
the respondent was put in a difficult
position due to the instructions he
received from his client. The Tribunal
considered that the matter fell at the
lower end of the scale of professional
misconduct and a censure was
sufficient penalty.
Professional briefing Web review
This month the web review takes a look at three
government websites designed with the rights of the
consumer in mind
Web of protection
January is the traditional season for
returning Christmas presents which
don’t fit, don’t work or just don’t have
the same appeal as a cash refund. If the
retailer in question won’t allow you to
return the goods in question, fear not.
Trading Standards Central
www.tradingstandards.gov.uk
The name suggests a one stop site for
all matters to do with trading and
standards and it certainly doesn’t
disappoint. Maintained by the Trading
Standards Institute (www.tsi.org.uk),
this site has a wealth of resources
available to both consumers and
traders (and other interested parties,
too). First, there is an impressive array
of advice leaflets and online
information on a list of topics
including shopping over the internet,
unfair terms in consumer contracts and
weights and measures issues. These are
broken down, where appropriate, into
information for Scotland, and
information for England and Wales. It
also provides information on how to
register with the telephone and mail
preference services to cut down on cold
calls and junk mail, which I would
heartily recommend doing.
Trading Standards Central provides a
list of legislation required to be
enforced by local authorities in
Scotland, together with a note of other
legislation relevant to trading standards
and to the conduct of trading activities
of both consumers and traders
generally. A very useful pointer to
solicitors seeking the source of trading
standards rules.
There is a diverting quiz to test your
knowledge of consumer law. This is
updated weekly and is really hard (your
reviewer scored 2 out of a possible 6)!
Additionally, there is an alarmingly
long list of product recall and safety
notices telling the shopping public
which products are liable to injure or
disappoint them – just hope that none
of your Christmas presents appear on
the list.
Who writes
this column?
The website review
column is written by
Iain A Nisbet of
Govan Law Centre
All of these links
and hundreds more
can be found at
www.absolvitor.com
Consumer Direct
www.consumerdirect.gov.uk
Another government website, this is
mainly aimed (as the name suggests) at
consumers. There is some useful advice
and some good factsheets which could
be printed out for future reference.
Of most interest however, is the
section on complaints. Alongside some
good advice on how to make a
complaint are a series of template
complaint letters to write to the
retailer/credit provider in question –
supplied courtesy of Liverpool City
Council. These give different styles with
reference to the relevant legislation for
different scenarios. The last letter is a
threat to take the offending company
to court within seven days, so it may
come as a disappointment that the site
offers no such templates for small
claims actions.
Office of Fair Trading
www.oft.gov.uk
This website provides a huge wealth of
information on all of the OFT’s
activities. My impression is that there is
more information on this site than on
the others, and although it seems to
cover the issues in a more matter-offact way, it would be harsh to say that
the site wasn’t user friendly. For the
lawyer looking for something of use on
these pages, the OFT certainly seems to
have a lot of information on
competition law.
In particular, I would commend the
UK competition court cases database
for your attention. The database aims
to list comprehensively UK judgments
in cases involving competition law, and
to act as a starting point for further
legal research. The listings contain only
brief information about the facts of the
case and the judgment given, but also
give contact details for obtaining
further information.
The database is created by voluntary
submissions by lawyers involved in
competition law court cases in the UK,
and cases can be added on the site
itself. This is all very “Web 2.0” – think
of it as a kind of Wikipedia or MySpace
for competition lawyers. There does
seem to be a dearth of more recent
cases and cases from Scotland, so if
you’ve been involved in a competition
law case recently – go on, post it here
and help the OFT (and your fellow
practitioners).
Finally, if you’re having a dull
afternoon in the office (or you want
to do some valuable consumer-based
research) I’d really recommend the
“scams” page in the consumer section
of the site. You can read about all the
delicious little scams that people get
up to and how not to fall for them,
take part in a number of engaging
quizzes or games, or visit the
www.winmoneynow.co.uk site which
stops just short of telling you not to
be so stupid, in offering the sage
advice to prize scam recipients: “You
have not won anything at all. You
have not won a million pounds in the
Dutch lottery. You have not won a
holiday home and you have not won
a free iPod.”
Professional briefing Book review
The book packs a lot into a condensed format, but should
be used to supplement rather than replace other texts
Scottish
Administrative Law
Jean McFadden and
Dale McFadzean
PUBLISHER: Dundee University Press
ISBN: 1 84586 013 6
PRICE: £15
This book appears as part of the Law
Essentials Series published by
Dundee University Press. As such, it is
one of a growing number of texts of
much shorter length than the average
student textbook which are intended
as introductory texts or exam revision
aids. Accordingly, it is appropriate to
evaluate the book in the light of those
purposes, rather than against the
criteria appropriate to a traditional
textbook or a practitioner manual.
The authors have done well to
cover the full range of topics normally
embraced by the term “administrative
law” so briefly: the book extends to
only 114 pages in a small format
(including titles and index). In
general, the exposition both of
doctrine and institutions is both
accurate, and up to date, and
reasonably clear. However, I do have
some quibbles, and suggestions for
improvement for future editions.
Chapter 2 is devoted to doctrines of
the constitution. This is clearly a topic
that has to be covered but, given that
space is at a premium in such
volumes, too much material is
included that does not really
contribute to an understanding of the
Unlike some texts on
following chapters, or, at any rate, its
administrative law, it does not overrelevance to administrative law is not
emphasise judicial review, and the
made clear. An example is the
chapters on non-judicial remedies
discussion of separation of powers at
(ombudsmen, tribunals and
pages 5-9.
inquiries) provide useful summaries
Also, I would suggest that the
of these institutions, but where the
treatment of judicial
authors move from
It is
review is a little too
description to evaluation
appropriate
“traditional”. Recent
there is a tendency to
to evaluate
relevant constitutional
make claims which are not
reforms such as devolution the book in
properly substantiated, for
and the Human Rights Act the light of
example: “long regarded
are certainly discussed, but those
as ‘toothless’ and
purposes,
in my view their
inadequate, the
rather than
significance is
Ombudsmen have in
against the
underplayed. This is
recent years proven
criteria
particularly true of the
themselves to be an
appropriate
Human Rights Act: its
invaluable resource for
to a traditional challenging administrative
effect on judicial review is
discussed solely in terms of textbook or a
action”. This is by no
practitioner
proportionality, and the
means an uncontroversial
manual
full implications of s 6 are
statement, but no
not explored.
evidence is offered for it,
On a more specific point, and this
and there is no amplification of it.
may be consequence of the pressure
This probably reveals the
on space in such texts, the treatment
limitations of the format of this sort
of the well-known presumptions of
of book. There simply is not the space
interpretation (against taxation,
for taking an evaluative, as opposed
retrospective effect, denial of access
to a purely descriptive approach to
to the courts, sub-delegation) might
the subject, reinforcing the point that
give the unwary student the
it may be very helpful to students as
impression that these are rules
an introductory text or revision aid,
limiting what may be achieved by
but should be used to supplement
subordinate legislation rather than
rather than to replace more
merely presumptions that may be
substantial texts.
overcome by appropriately drafted
Tom Mullen, University of Glasgow
enabling statutes.
FORTHCOMING EVENTS
(CPD Hours in Brackets)
Full details of locations, speakers, programmes and online booking available on
the website www.lawscot.org.uk or phone Lesley on 0131 476 8182
JANUARY 2007
26/27 Civil Rights of Audience – Edinburgh (23 management including further dates)
FEBRUARY
6
12
15
20
20
21
24/25
27
28
Money Matters on Separation – Edinburgh (6)
Preparation for and Appearance at a Public Local Inquiry – Edinburgh (6)
CPD on Tour – Perth (4)
Buying and Selling a Company – Edinburgh (6)
Letters of Engagement – Glasgow (2 management)
Getting the Most Out of Your Estate Agency – Hamilton (3 management)
Civil Rights of Audience – Edinburgh (23 management including other dates)
Letters of Engagement – Dundee (2 management)
CPD on Tour – Newtown St Boswells (4)
MARCH
2
6
8
9
14
15
20
21
22
22
24/25
28
29
Annual Conference – Edinburgh (6)
Letters of Engagement – Dumfries (2 management)
Legal Advice for the Older Client – Stirling (6)
Law Society AGM – Edinburgh
CPD on Tour – Ayr (4)
CPD on Tour – Dumfries (4)
Tribunal Pleading & Advocacy – Edinburgh (6 management)
Reparation – Stirling (6)
Getting the Most Out of Your Estate Agency – Aberdeen (3 management)
Letters of Engagement – Aberdeen (2 management)
Civil Rights of Audience – Edinburgh (23 management including earlier dates)
Written Pleadings – Glasgow (7.5 management)
Bankruptcy & Diligence Bill – Glasgow (5)
APRIL
17
18
19
19
25
25
26
Online Legal Research Skills – Stirling (3 management)
Risk Management Roadshow – Edinburgh (2.5 management)
Letters of Engagement – Edinburgh (2 management)
Mental Health Tribunals – Edinburgh (6)
Risk Management Roadshow – Aberdeen (2.5 management)
Written Pleadings – Glasgow (3.75 management)
CPD on Tour – Elgin (4)
ANYTIME/ANYWHERE – see www.lawscot.org.uk/update
If you can’t make it to one of our live events, you no longer have to feel you have missed out. Our suite of
blended learning initiatives makes it easy to catch up with the latest developments.
■ CPD Online – our web based distance learning tool
■ CPD via DVD – up to four hours CPD in your own locality
■ DVDs of Live Events – we have just introduced this. The first two DVDs cover the recent Employment Law and
Money Laundering Reporting Officer conferences and others will follow in the near future – view with colleagues and
claim the same CPD as those who attended the actual event
For further
information
in connection with our seminars,
please contact Update at the undernoted address:
Update, The Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh EH3 7YR
Legal Post, LP1, Edinburgh 1
Telephone: 0131 226 7411 Fax: 0131 476 8118 Email: [email protected]
In-house COPFS trainees
The life of a trainee in the Crown
Office and Procurator Fiscal Service
is varied, demanding and a superb
training for criminal court work, says
Rebecca Kynaston
Top notch
training
I joined the Procurator Fiscal
Service as I was keen to pursue
a career prosecuting in the
public interest. The legal
traineeship provided by the
Crown Office and Procurator
Fiscal Service (COPFS) did not
disappoint and can only be
described as a unique
experience. The training and
development provided in the
two years of your traineeship is
second to none.
The structure of the
traineeship involves working in
a wide range of specialist
departments within COPFS,
essentially giving trainees a
grounding in different aspects
of the work undertaken by
COPFS.
Starting at the top
I joined Crown Office, the
headquarters of COPFS, as a
trainee in August 2003 and
spent my first three months
working within the High Court
Unit in Chambers Street,
Edinburgh. This was a
particularly responsible
placement, as I was involved in
the preparation of bail appeals
in the High Court. That meant
liaising with advocates depute
and attending the bail court as
a minuter each morning.
Other first year placements in
Crown Office allow trainees to
get involved in the appeals
process, Policy Unit, Financial
Crime Unit (National Case Work
Division) and International Unit.
Overall, the first year within
Crown Office gives trainees a
good understanding of the role
that Crown Office and its
individual departments play in
the running of the prosecution
service as a whole. This is of
great benefit when, having left
headquarters behind, a fiscal
needs to work and liaise with
the different specialist
departments in Crown Office.
Second year local
The second year of traineeship is
spent within a procurator fiscal’s
office. This could essentially be
anywhere in Scotland and in any
size of office.
The main role of second year
trainees is to assist the
procurator fiscal in carrying out
his or her duties, the principal of
which is prosecuting criminal
acts in the public interest. I was
able to get involved in the
process from the earliest stage,
when cases are reported by the
police or other reporting
agencies. “Marking” a case
involves assessing the evidence
and, if there is enough evidence
to support a prosecution,
deciding whether a prosecution
is appropriate in the public
interest. This can be a difficult
decision as there are often many
factors to take into account, and
the support and advice of
experienced colleagues helped
me gain confidence.
Second year trainee duties
did not acknowledge that the
also included representing the
environment in which we work
Crown in court. A great deal of
is highly pressured, but it is also
training is provided before your
at times very rewarding.
first court appearance, but it
The department extended its
remains a daunting prospect for
flexible working scheme a year
most trainees. However, I found
ago, to allow deputes the ability
it was a question of biting the
to work non-standard hours.
bullet, and thankfully, before
This increased flexibility has
long I had overcome my fears
proved particularly helpful for
and was taking the life of a
deputes with family
court practitioner in my
commitments.
stride.
Would I
I was surprised to
recommend a COPFS
learn that the
traineeship? If you
in
The first year with
work of a
want a vast amount
es
Crown Office giv
procurator fiscal
of criminal court
od
go
a
es
traine
the
depute is so
experience there is
of
g
din
an
rst
de
un
and
varied. There is a
probably no better
role Crown Office
y
pla
lot more to the job
place
to train than
ts
en
rtm
its depa
than presenting cases
with the Crown Office
in court, which is what the
and Procurator Fiscal
public most often associate the
Service. By the end of your
role with.
second year the experience you
The other principal duty of the
have gained allows you to feel
procurator fiscal is the
confident conducting any
investigation of all sudden,
procedural or trials courts
suspicious or unexplained
within the district and sheriff
deaths in Scotland. This means
courts. For anyone looking to
liaising with doctors and
forge a career in the field of
instructing post mortems to be
criminal law, COPFS provides a
carried out where necessary.
good environment in which to
Clearly, with such a role comes a
do so. Not only is the work
great deal of responsibility as
challenging but no two days are
well as the need for a high
the same. The variety of work a
degree of sensitivity.
trainee carries out makes the
job both stimulating and
Demanding role
enjoyable.
The role of the procurator fiscal
Rebecca Kynaston is a depute
and the COPFS trainee is a
procurator fiscal attached to the
varied and often demanding
Dunfermline office
one. I would be telling a lie if I
fyi
In-house Pathclearer
Graeme Colquhoun of Scottish & Newcastle plc outlines
the group’s innovative “Pathclearer” approach to
commercial agreements
A clearer way to deal
The speed with
which terms
can be agreed
means that
S&N is able to
seize and
realise more
opportunities,
some of which
may have been
lost in the
quagmire of a
more
traditional
legal approach
Lawyers spend a huge amount of time
drafting and negotiating detailed
commercial contracts for their clients.
However, the in-house legal team at
Scottish & Newcastle plc (“S&N”)
believes that in many cases detailed
contract terms are unnecessary and
can be a waste of time and resources
for the businesses involved.
A paper problem
Our small team of lawyers at S&N was
overwhelmed by paperwork. Often
the big legal issues facing our
business were hard to spot because of
the sheer volume of paperwork that
passed across our desks every day.
Certainly, S&N is not the first to
identify the need to implement an
approach to drafting that is more
pragmatic, commercial and efficient.
What we did, though, was develop a
novel set of tools – called
“Pathclearer” – which helped reduce
paperwork and better identify legal
risks.
Mutual understanding
We worked on the principle that in
many cases detailed contract terms
are unnecessary and can be a waste of
time and resources for the businesses
involved. Relying more on the
common law and seeking to create
commercial affinity rather than a legal
straitjacket, the Pathclearer approach
has proved to be effective in
improving both the time taken to
produce contracts and the
effectiveness of these agreements. The
commercial teams on both sides
remain at the heart of the deal,
openly discussing the key commercial
concerns and gaining a better
understanding of each other’s
expectations. The result is a more
honest and understandable
relationship that is founded not on a
piece of paper, but rather on the basis
of mutual benefit.
Legal team’s added value
As well as finding commercial teams
more actively involved in the contract
negotiation, the speed with which
terms can be agreed means that S&N
is able to seize and realise more
opportunities, some of which may
have been lost in the quagmire of a
more traditional legal approach. S&N
and its business partners know what
to expect both from each other and
from their legal document. They
know the contract is not an insurance
policy, nor will it cure all future ills.
S&N’s legal team is able to deliver a
more efficient legal service, quickly
clearing the path of the “dross” and in
so doing, identifying key commercial
issues (rather than slavishly arguing
over the usual legal points). By
adding value to the business process
in this way, S&N’s legal team
maintains its position at the heart of
S&N’s business, able to identify and
manage legal risk while reflecting
commercial realities.
The year just ended saw a national
rollout of Pathclearer in an effort to
engage businesses and lawyers in
debate about the applicability of this
approach. A number of seminars and
presentations have been given,
including but not limited to the
Forum on Commitment
Management, a conference hosted by
the International Association for
Contract and Commercial
Management, and Legal Risk
Management, a seminar organised by
the CLO Programme and hosted by
Lloyd’s of London. For those
interested, a detailed article on
Pathclearer in PLC Magazine can be
found on the www.practicallaw.com
website.
Graeme Colquhoun is Head of UK
Legal at Scottish & Newcastle plc
Meet your committee
The In-house Lawyers Group
committee has been reviewing the
service it provides to members. In
recent years the committee has
increased the number of seminars and
introduced videoconferences to assist
those outwith the central belt with
their CPD requirements. It has also
produced a Guide for Inhouse Lawyers
and developed ILG’s own pages on
the Society’s website. However, there
must be other services the committee
could develop.
In order to find out what members
would like, committee members
propose to visit each area and talk
informally to members – to get a feel
for what concerns, needs, desires there
are which the committee could address.
These visits are planned for
January/February 2007 and would take
the form of an informal evening gettogether with 6-12 people. If you
would be interested in attending one of
these meetings or inviting the
committee to visit your area, please
contact the committee secretary, Tricia
Sim at [email protected] .
COMING SOON… next up on the
seminar programme
Wednesday 31 January: Cartel
Investigations – What all Inhouse
Lawyers need to know
Speaker Catriona Munro, Maclay
Murray & Spens. This will be hosted by
Maclay Murray & Spens and
videolinked between their Glasgow
and Edinburgh offices. If there is
sufficient demand, they will also link to
Aberdeen.
Tuesday 6 February: EU Procurement
– Recent Key Developments
Speaker Jennifer McEwen, Pinsent
Masons. This will be hosted by Pinsent
Masons at their Glasgow offices.
Tuesday 13 February: Policy &
Influencing
Speaker Fiona Killen, Anderson
Strathern. Venue: The Law Society of
Scotland. This will be videolinked to
Glasgow, Aberdeen, Inverness,
Lerwick, Motherwell and Borders.
Property Landowners
Option agreements with developers are unlikely to
safeguard the interests of selling landowners, says
Sinead Lynch, who argues that promotion agreements
offer a better solution
Not the
best option
Until recently, when a housebuilder
arrived at your door promising riches
beyond belief in exchange for those
two fields either side of the new bypass,
there was one way to agree a deal: a
traditional option agreement.
Under such option deals, the
landowner would receive an initial
cheque, for a welcome but often far
from spectacular sum, while the
housebuilder would depart with an
option to buy the land, during an
agreed period of time, once they had
been successful in securing planning
consent for the site.
lot of money, thanks to a form of
contract that was always loaded in
their favour.
Option agreements do still have a
place, particularly when it comes to
small sites, but owners of larger or
more complex landholdings, with
genuine hope value, should steer
clear. Sign one too hastily and you
could be making a mistake that could
cost you, quite literally, millions of
pounds.
Now, thankfully, an alternative to the
traditional option has emerged, in the
form of the promotion agreement.
Smile on the tiger
The serious money only changed
hands when consent had been
secured, normally at an agreed
discount to market value. The discount
– typically between 10 and 30% –
supposedly reflected the cost and risk
to the housebuilder of securing that
consent.
Despite eventually having to hand
over a cheque for what could easily be
a seven or even eight figure sum, the
housebuilder could often be seen
walking away from a successfully
executed option deal with a pleased
smile on his face. That was because the
housebuilder had just made an awful
Unequal match
To fully appreciate the benefits of the
new mechanism, you have to
understand what is wrong with the oldstyle option.
Under an option agreement, the
interests of the two parties are clearly
and totally mis-aligned. The
landowner wants to sell his land for as
much as possible, while the
housebuilder wants to buy it for as
little as possible.
This mis-match is so obvious that in
recent years option agreements have
been wrapped up with all sorts of
additional terms and conditions
designed to redress the imbalance
Promotion
agreements:
The basics
Under a promotion
agreement, a
landowner enters into
an agreement not with
the company that will
eventually build houses
on the site, but with a
specialist promoter.
Essentially the
promoter takes on the
risk and costs of the
planning process and
in return he or she
takes an agreed
percentage, not of the
market value but of the
actual selling price.
between the two sides. The usual result
is vastly more paperwork, higher legal
costs and a not always satisfactory
outcome.
There are further problems. Take s 75
agreements – so-called planning gain –
which effectively see the landowner
agreeing to pay for various
infrastructure improvements in
exchange for their getting planning
consent.
Under an option agreement, it suits
the housebuilder to agree readily to
the planning authorities’ s 75
requirements for two reasons: not only
do they get their planning consent
sooner, but the cost of the s 75
agreements reduces the market value
of the land. As a result, it’s the
landowner who loses out.
Then there is the contentious issue of
market value. Either the two parties
eventually agree a figure somewhere in
the middle ground or a professional
valuer, brought in to arbitrate, will do it
for them.
Securing a premium
Either way, because of the conservatism
inherent in any valuation exercise, the
agreed, so-called market value can
easily be 20-30% below the actual
market value and anything up to 50%
Property ARTL
ARTL prepares
for lift-off
Under an option agreement, it suits
the housebuilder to agree readily to
authorities’ s 75 requirements
below what one particular buyer with a
vested interest might pay for it on the
open market.
Premium prices are never reflected in
valuations, but are far from unknown
in the development land market.
Again, under an option agreement, it is
the landowner who misses out and, as
our case history shows, it can be to the
tune of millions of pounds.
However there is a solution, the
promotion agreement, and we can
think of no more powerful indication
of their efficacy than the fact that
housebuilders don’t like them at all.
For landowners facing a once-in-alifetime opportunity and
understandably anxious to make the
most of it, they are undoubtedly the
answer.
Under a promotion agreement, a
landowner enters into an agreement
not with the company that will
eventually build houses on the site, but
with a specialist promoter.
Planning before bidding
Once again, a limited upfront
premium may be paid, but essentially
the promoter takes on the risk and
costs of the planning process and in
return he or she takes an agreed
percentage, not of the market value but
of the actual selling price. That is the
key difference: when planning consent
has been secured, the site has to be sold
to the highest bidder.
With both landowner and promoter
having a vested interest in the final
selling price (normally the promoter
takes 10-20%), both sides will be very
keen to see the best possible consent
granted in the minimum length of
time. Both parties, for instance, will be
similarly aligned when it comes to
planning gain: willing to give away the
minimum required to secure consent
but absolutely no more.
Promotion agreements have been
with us for a few years now and a
proper market for them is beginning to
emerge. In certain parts of the country,
half a dozen specialist promoters will
now be competing for the best sites,
ensuring that landowners can be
confident of getting the best deal. Even
some housebuilders are reluctantly
coming round to them, but usually as
part of some complex hybrid deal for
large parcels of land, where part of the
land is held under option and part
under promotion agreement.
Most landowners, however, should
stick out for what – nine times out of
10 – will undoubtedly be the best way
for them to structure the deal.
Promotion agreements are definitely
here to stay.
Sinead Lynch, BSc(Hons), MRTPI is an
associate at property and land specialists
Strutt & Parker, based in the Planning
& Development Department at the
firm’s Edinburgh office
As most solicitors involved in
conveyancing will be aware,
Registers of Scotland plans to
introduce the new automated
registration of title to land
(ARTL) system of registration
throughout Scotland in the
next few months on a county
rollout basis. ARTL offers
paper-free e-registration of
dealings with whole in the
Land Register via the internet
and is likely to be suitable for
most dealings applications.
Registration dues for ARTL
applications will be about
25% less than for paper
applications, and for security
transactions (both standard
securities and discharges) the
new fixed fee of £30 per
application will be reduced to
£20. The Keeper will act as
agent for HM Revenue and
Customs, enabling the
completion and submission
of a stamp duty land tax
(SDLT) return and payment
of any tax due as part of the
ARTL process. As a result
SDLT certificates will not be
required in ARTL
applications.
ARTL will be accessed by
accredited users only. At the
end of November the Keeper’s
staff wrote to all firms known
to be active in conveyancing,
inviting them to apply for a
licence to use ARTL and
enclosing a licence
application form and forms
relating to the payment of
registration dues and SDLT by
direct debit, which will be
required under ARTL. On
return of your completed
form your organisation will
be granted a non-exclusive,
perpetual but revocable
licence to use the ARTL
system. Firms which have
already signed up for the
Registers’ direct debit facility
will be able to use their direct
debit FAS number and email
address for ARTL transactions.
Accordingly, there will be no
need to complete additional
direct debit paperwork.
If you have intended to sign
up for ARTL but have not
received the sign-up letter, or
if you have received it but not
yet responded to it, the ARTL
team at the Registers strongly
recommend that you take
action now. Please do so by
contacting Mike
Hollingsworth
([email protected]
.uk, 0131 659 6111 on ext
5734) or Jon Nagl
([email protected],
on ext 5444).
For the practice rule and
guidance on ARTL, visit the
Society’s website
www.lawscot.org.uk .
Turnaround Times
(as at 9 December 2006)
Ministerial target
Latest year-to-date
turnaround time
To achieve recording and registration
turnaround times in 2006-2007:
Averaging over the year as a whole no
more than 20 working days for sasine writs
18 working days
Averaging over the year as a whole no more
20 working days
than 30 working days for dealings with whole
Property Letting to disabled people
Solicitors should be aware of new duties for
landlords in relation to disabled people,
including making “reasonable adjustments”
Letting in the disabled
Much of the recent coverage of the
Disability Discrimination Act
2005 (“DDA 2005”) has focused
on the disability equality duty
placed on the public sector. It is
likely, however, that the sections of
this Act which apply to the letting
of property will have the most
immediate effect on disabled
people, who are currently half as
likely to rent privately as nondisabled people.
Part 3 of the Disability
Discrimination Act 1995 (“DDA
1995”) placed a lesser burden on
those letting or managing
property than those providing
other commercial services. Whilst
discrimination by, for example,
refusing to let or offering a lease
on worse terms is unlawful, those
letting or managing property were
not required to make reasonable
adjustments to the way the service
was provided.
The DDA 1995 has been
amended by the DDA 2005 to
address this situation. From 4
December 2006, those letting or
managing property are required to
make “reasonable adjustments” to
policies, practices, procedures and
terms that prevent a disabled
person using or enjoying rented
facilities. A landlord could,
therefore, have to waive a “no
dogs” policy for a tenant who
requires an assistance dog.
Inclusions and exclusions
This new requirement to make
reasonable adjustments also
requires the provision of
auxiliary aids or services
requested by a tenant. A
landlord could, for example,
receive a request to replace
round-headed taps with lever
taps for a tenant’s disabled child
whose impairment makes it
difficult to grip objects.
Alternatively, a managing agent
could be asked to provide a
tenancy agreement in large print
The effect of the right to adapt
will be tempered by the need for
the tenant to arrange and pay
for the adaptation themselves
by a tenant with a visual
impairment.
Whilst the costs of making such
adjustments cannot be passed
directly to the tenant, landlords
and property managers can be
assured that their duties are not
limitless. An adjustment is only
required to result in benefit in
relation to the occupation of the
let premises. A landlord is not,
therefore, required to provide a
wheelchair for general use by a
disabled tenant. Other exclusions,
such as premises which are the
principal home of the landlord,
and changes that would raise
health and safety issues, also apply.
Arguably the most important
exclusion, however, is that of the
requirement to remove or alter a
physical feature of let property.
The closest a landlord in Scotland
gets to being required to do so is
to be found in Chapter 7 of the
Housing (Scotland) Act 2006,
which also came into force on 4
December. This requires that a
landlord does not unreasonably
refuse a request from a tenant to
adapt their let property. What is
“reasonable” depends on factors
such as the nature of the disabled
person’s impairment, what is
being requested and the length of
the tenancy, amongst others.
Permissions and conditions
A tenant is required to request
agreement from their landlord
before they carry out works, which
must be intended to make the
property suitable for the
accommodation, welfare or
employment of a disabled person.
If the landlord must seek
permission from someone else
before the adaptation can take
place, they must attempt to do so,
although they can pass on any
costs they incur. Examples of such
permissions could be requesting
agreement from a mortgage
lender, or obtaining planning
permission or a building warrant.
A landlord must give or refuse
permission, or give permission
subject to conditions, within a
month of a request. Tenants do
not have an automatic right to
leave a property adapted at the
end of the tenancy. A landlord
could, therefore, include a
condition that a tenant removes a
ramp installed to enable access for
a disabled person.
Failure to respond to a request
within a month does not give the
tenant a right to make the
adaptation. Silence is presumed to
indicate refusal of permission by
the landlord. Aggrieved tenants
can use the Disability Rights
Commission’s conciliation service
or apply, within six months of the
refusal, to the sheriff court to order
the landlord to give consent or
withdraw an unreasonable
condition.
The effect of this new right to
adapt will be tempered by the
need for the tenant to arrange and
pay for the adaptation themselves.
Whilst they may receive an
adaptation grant from their local
authority to make the adaptation,
they will not have a right to receive
assistance to reinstate the property
until the relevant section of the
Housing (Scotland) Act 2006 is
implemented in 2007 or 2008.
Richard Hamer is Director of
Ownership Options, a Scottish
charity which aims to resolve the
housing problems faced by
disabled people.
The organisation welcomes
solicitors who, from time to time,
are willing to offer informal
general legal advice which helps
inform our approach. If you are
interested in this area please
contact [email protected] .
Property Single survey
The Society is calling on all conveyancers to help inform
their representations on the single survey
Single survey:
have your say
Having not long come to terms with
the full implications of the abolition
of feudal tenure, coneyancers are now
facing a series of new challenges.
Some, such as the rollout of ARTL,
have been widely welcomed.
Others less so. The meat is shortly
to be put on the bones of the
Housing (Scotland) Act 2006, the
legislation allowing the introduction
of purchasers’ information packs
(PIPs) containing single surveys.
The consultation on the detailed
draft regulations under the Housing
Act is due to begin this month
(January), before the final regulations
emerge in 2008. In response, the
Society is keen to gauge the opinions
of practitioners, with an online survey
launched this month, to establish the
best way forward.
The issues surrounding the single
survey have been well rehearsed. Will
purchasers trust a survey produced by
the seller, particularly if they don’t
have the opportunity to approach the
surveyor? Will single surveys
encourage sellers to renovate their
properties? Will underpricing
disappear? Are multiple surveys still a
problem, given the use of offers
subject to survey, and could single
surveys paradoxically lead to a
resurgence in the problem? What of
those selling in slower markets, if a
single survey becomes out of date?
Solicitors have responded to the
challenge of providing buyers with
more information. Along with an
energy certificate, the property sale
questionnaire (Journal, November
2006, 48), which contains practical
information about the property, such
as maintenance contracts and access
rights, would also form part of the
PIP. Indeed, PSQs could soon become
standard for Scottish firms associated
with the Edinburgh Solicitors
The PSQ:
better
information
The property sale
questionnaire, being
piloted over a 10-12
week period (see
Journal, November
2006, 48), provides
information commonly
required by
purchasers and alerts
the selling solicitor to
the need to obtain any
necessary documents
and consents
Property Centre, which has 320 UK
members.
Janette Wilson, Convener of the
Society’s Conveyancing Committee,
commented: “Opposition to the
single survey is not based on the
effects on solicitors’ workload or
work practices. People will not stop
buying and selling houses – I think
the effect would be very neutral on
the profession. The Society’s concerns
are based on the effect on the
consumer.
“For the majority of people, buying
a house is the biggest purchase they
will ever make and it’s important that
we continue to work to improve the
process of buying or selling a home in
Scotland. That is the point of the
online survey – we want to know
exactly what practitioners think so
that we can make further
improvements and help to inform the
ongoing debate. In the meantime, the
Society will continue to engage with
the Scottish Executive to make sure
that any product launched is as good
as it can be.”
Ross Mackay, lead residential
property partner at HBJ Gateley
Wareing, agrees. “No-one knows what
the effect of the single survey would
be on the market, but it would be a
major change in practice for the
consumer, rather than the solicitor. It
is our clients who will be affected by
this – solicitors have no axe to grind
and are not acting out of self-interest.
“If practitioners are concerned
about the impact on their clients, they
should raise the issue in their local
press or with their MSPs.”
Ten minutes that could change your world
The Society is giving its members the
chance to contribute to the debate on
the single survey, and voice whether
they have concerns or think it is part of
the future of conveyancing, in an online
survey.
The online questionnaire, to be
launched this month, also invites
respondents to comment on the impact
that unauthorised alterations to
residential properties have on their dayto-day workload.
Section one asks for feedback on the
aims of the single survey, including the
use of mortgage valuations, averting
multiple surveys, improving information
available to prospective buyers,
deterring low upset prices and
improving Scotland’s housing stock
overall.
The survey then asks solicitors to
comment on what impact they think the
introduction of the single survey might
have, and key issues such as the lifespan
of the single survey product, and the
property sale questionnaire (PSQ).
This is followed by a multiple-choice
section on domestic alterations to try to
determine the impact they have on the
Scottish housing market, and the
amount of time solicitors spend on
unauthorised alteration inquiries.
Members will also have an opportunity
to comment on the most common
problems they and their clients
encounter.
James Ness, Deputy Director of
Professional Practice, said: “This gives
us a great opportunity to canvass the
profession directly on an issue that will
affect hundreds of thousands of people
across Scotland. There has already
been a huge amount of discussion
surrounding the planned introduction
of the single survey, but our online
survey will allow those practitioners
who may not yet have been part of the
debate to get involved.
“Conducting an online survey will
also allow the Society to collect
valuable information on the views of
conveyancers, whether they operate
within a property hotspot or in a slower
market.
“It takes less than 10 minutes to
complete the survey and I urge any
solicitor with an interest to take part, to
ensure that the Society not only has as
much information as possible, but truly
reflects the views of the wider
profession, and not just the most
vociferous, and fulfils its duties to
represent the interest of its members
and the public.”
To complete the survey, log on to
the Society’s website
www.lawscot.org.uk, or click on the
link in the next e-zine.
Sidelines Hearsay
fyi
s to
PPA Scotland aim
encourage best
eas of
practice in all ar
ing
ish
bl
pu
e
in
az
mag
e
nc
excelle
Well, you would boast about it if
you won something, wouldn’t
you? It was happy faces all round
for the Journal team at the 2006
Scottish Magazine Awards on 30
November as they went home
with not one but two category
awards.
Editor Peter Nicholson is
pictured collecting the prize for
Member Magazine of the Year
from Roger Pitt, managing
director of sponsor Headley
Brothers, while event compere
Gyles Brandreth looks on. And
your magazine was also voted top
of the class for Business and
Professional Magazine Design by
the judges, of whom John Brown
of the Chartered Institute of
Public Relations (far right) is
Launch event: Booby Birds
founder Tina Korup
practises her technique
Journal scores
double top
shown with designers Renny
Hutchison and Debra Campbell.
The awards are run by the
Periodical Publishers Association
(PPA) Scotland, whose aims are to
encourage best practice in all areas
of magazine publishing
excellence. The Radisson SAS
Hotel, Glasgow was the venue for
the awards dinner and
presentation ceremony, attended
by about 300 people from the
industry.
The Journal was also highly
commended in the Business and
Professional Magazine of the Year
£400,000 Booby
Now it’s not often these days that
you’d get away with referring in
print to any members of the fair
sex as “Booby Birds”, far less
leading female lawyers, but
Council member and Lloyds TSB
solicitor Karina McTeague, and
Elizabeth Baker of Kidstons in
Glasgow, have positively
volunteered for the tag in a
fundraising stunt for breast cancer
charities.
If the thing really does fly, the
category (as was Peter Nicholson
in the Business and Professional
Editor class), and in the final for
the overall title of Magazine of the
Year. This went to Scottish Field,
which came out on top in two of
the consumer magazine
categories.
daredevil pair will join 18 other
women taking part in a 10,000 ft
tandem skydive over St Andrews
next 8 September. At time of
writing, eight have committed to
raising the necessary £20,000
each; 20 would make £400,000 in
just 60 seconds if the organisers’
maths is on the mark.
Showing how it might be done
on the day is Tina Korup, who
founded the Booby Birds after a
close friend was diagnosed with
Sidelines Letter from Washington DC
Capitol Hill
Letter from
somewhere
else…
Alistair
Bonnington
finds much
to admire in
Washington
DC
What the
judges said…
Member Magazine of the Year
Promotes a very strong message to
and on behalf of the profession.
Equally strong content, goes well
beyond just member profiles and
reports. Increased circulation proves it
is providing what its members want.
Best Magazine Design – Business
& Professional
Fabulous new design with terrific
covers. The design is clean, clear and
very well structured. Design is
important, whether B2B, consumer or
society and this particular magazine
really stands out.
prize
an advanced form of the disease.
“I’m delighted that we’ve got the
project literally off the ground”,
she said. “With a staggering one
woman every three hours being
diagnosed with breast cancer in
Scotland every day, more than
ever they need our support and
those of the numerous charities
offering frontline services.”
Find out more and donate online at
www.boobybirds.co.uk
Supreme Court
Capital Capitol
For sheer accessibility, the capital of the
richest nation on earth is unrivalled. In little
more than an extended morning the visitor
can see the White House, the Supreme Court
and both the House and Senate in the Capitol
building. This leaves plenty of time to take a
stroll through the Potomac Park later in the
day, where you can readily believe yourself to
be in the extensive grounds of a fine Virginia
house rather than in the middle of the city
where the future of the entire planet is
regularly determined.
In the riverbank area you will see memorials
to Abraham Lincoln, Thomas Jefferson and
the understandably extensive one to Franklin
D Roosevelt, the four term President.
A trip to at least some of the Smithsonian
Museums’ 14 sites is a must. If kids are with
you, go to the National Space and Science
Museum where you can see the Apollo
spacecraft from the first moon mission. On no
account should you miss the Jeffersonian
Library, the Library of Congress, started when
that great man in later life sold his fabulous
collection of books to the US people. “I cannot
live without books”, he had stated in one of
his hundreds of letters to his fellow expresident and co-signatory of the Declaration
of Independence, John Adams. Happily in his
long life, much of it spent in his beautiful
mountain-top home in Monticello, Virginia, he
never did. In the Library, one of my personal
favourites is the TV reel of Johnny Carson’s
interview with Groucho Marx – who when
asked of his greatest achievement replied, “I
have two of my books in the Library of
Congress – that’s pretty good don’t you
think?” If he had been watching, Jefferson
would have agreed.
The Americans are the most delightful hosts
of their heritage buildings, about which they
are immensely and justifiably proud. In the
Supreme Court
we were invited
to photograph
the Bench and
encouraged to go
into the basement
to view the
display of
supreme courts
from around the
world’s legal
systems.
Scotland, I found,
was not represented – maybe we should
write in!
On my most recent Washington visit I had
one of those surreal experiences you can’t
help thinking must mean something, but you
can’t work out quite what. I went down to the
Lincoln Memorial one sunny morning – the
very early hour being due to my body clock
still being on UK time. I found myself under
the roof of the open Roman-style temple to
the great Civil War President, whose huge
statue dominates the concourse. Quite alone
in the memorial at this time of day, and
obeying the request for respectful silence, I
was scanning the terms of the Gettysburg
Address on one of the walls when I became
conscious of a galloping-like sound behind
me. For all the world it sounded like the
cavalry arriving in the cowboy films I used to
watch as a child on TV.
I turned to find myself facing about 200 US
marines in battle fatigues out for an early
morning run. Their officers, who were
carrying platoon flags (the Americans love
flags), had decided to bring the troops up the
steps into Abe’s amphitheatre so they could
pay their respects. Unbidden, many of these
sweating, silent, super-fit young men bowed
their heads towards Lincoln’s statue and
saluted him using the Roman soldiers gesture.
Some shut their eyes – I knew they were
praying. I guessed they were about to go to
Iraq and were praying that they might be
spared to return to their families.
Lincoln, like all great wartime leaders, was
acutely conscious of the personal tragedies
wrought by battle. He would have been very
alert to the worries of these marines and their
loved ones. As mentioned in the film Saving
Private Ryan, he wrote to Mrs J Horace Bixby
of Boston who had lost five sons in the
American Civil War in these terms: “I pray that
our Heavenly Father may assuage the anguish
of your bereavement and leave you only the
cherished memory of the loved and lost, and
the solemn pride that must be yours to have
laid so costly a sacrifice upon the altar of
freedom.”
Perhaps somewhere there should be a
memorial to Mrs J Horace Bixby, and
politicians should be compelled to visit there
before sending young folk off into battlefields.
As far as I know, not one word that poor
woman uttered has ever been recorded – but
she has much to say.
Sidelines
Part-time love
Jennifer Veitch finds the shadow of
the Diploma looming over her
studies even at this early stage
Trainee tips
by Abby Solvitor
Based solely on my personal experience
of student life, I’d be willing to bet that
performance anxiety strikes at a much
earlier stage in a law degree than most
other subjects. There isn’t just the
degree to worry about, but whether
you are doing well enough to progress
to the next level: the dreaded Diploma.
Since I’m doing a part-time course
that will take five very l-o-n-g years, it
might seem a little on the premature
side to start fretting about entrance to
the next course when I’m still only in
first year.
But those students who haven’t
realised that it’s their performance in
the Society’s professional subjects –
and not their final degree result – that
counts may be in for something of a
rude awakening.
And, with the spectre of the Diploma
looming large in the minds of most
students, grade envy begins as soon as
you start getting any results back from
your tutor. Your mark might look OK, or
even good; but just how good is it
compared to everyone else in the class?
Human nature being what it is, you
simply can’t resist wanting to know, but
there are a few caveats attached. For
example, there is a risk that discovering
you’re near the top of the class could
make you smug, complacent, and more
disposed to watching the EastEnders
omnibus when you should be kneedeep in contract case law.
Realising that you’re struggling could
spur you on to work harder, but it might
also convince you to throw in the
towel. Up to six years of part-time study
can seem like a very long time (and a
lot of money) to waste if you think
you’re not going to pass.
Of course, the really big question
about the Diploma is, how is your
academic performance measuring up to
the rest of the law student population?
But even if you know some students
from other law schools, it’s very difficult
to get a handle on your performance
compared to theirs, as you’re not
comparing like with like.
While the Society accredits all the
universities offering the LLB, they are
far from the same. The 10 different law
schools structure their courses slightly
differently, and many have different
marking systems – for example, some
will have a pass mark of 30%, others a
stricter 50%.
Entry requirements to the Diploma
also vary, and of course, the number of
places fluctuates; so your chances of
securing a place will not only depend
on how well you’ve done in
comparison to everyone else that year,
but how high demand is for places.
All in all, trying to find out just how
well you have to do to get a Diploma
place five or six years from now is
virtually impossible.
Faced with this kind of angst from the
outset, I suppose we law students have
two choices. We can either let it stress
us out, get us down and make us moan
– or just get on with coping with the
endurance test otherwise known as
studying for the LLB.
“Doing the best you can” may be
something of a cliché, but in this case it
really is the only sensible strategy to
adopt. At least then you can focus on
achieving a degree which many
employers will hopefully value, and if
you don’t succeed in getting a Diploma
place, you won’t be left wondering,
“What if I’d worked harder?”
Jennifer Veitch is a freelance
journalist and a regular
contributor to the Scotsman’s
law and legal affairs pages
No 8: THE SECRETARIAL POOL
You might be under the deluded impression that power within a law firm
lies with that clique of select souls known as The Partnership. This is
understandable given that The Partnership generally like to harbour this
illusion themselves. Yes, The Partnership think they have it covered, what
with all their tiresome decision making and meetings about empirical
topics like “marketing”, “strategies” etc.
However, before you get any warped ideas about this caste system be
warned. Within every law firm there is power and let me tell you it
emanates from the Secretarial Pool. The Partnership know this but tend
to keep it to themselves in case clients get wind of the situation. That’s
right, the Pool are the folk who can make or break your traineeship with
one sound refusal to help should they deem you not worth them staying
late the night before an urgent caveat/inhibition/timebar.
It is a fact that at some point you will be on your knees before this
crowd, draft caveat in hand, with your future career disappearing as
quickly as that partner heading out for a round of golf in the name of
client hospitality. Sadly, this knee bending may or may not be
metaphorical depending on the secretaries in question and your
relationship with them.
Not to be sexist, but it has to be said that the Secretarial Pool (or
support staff as we must learn to call them) generally consists of women
who have worked at that firm since Beltrami was in nappies, Findlay
considering a career on the stage and Macphail struggling with the rules
of sheriff court practice. Word to the wise, the Pool’s longstanding
service to a firm means that this crowd know the law better than the
aforementioned upstarts and can probably draft, serve, return and in fact
make a origami swan out of that summons which you have taken 10
hours to “dictate” like a stammering idiot.
On the surface the Pool appear to be a regiment of women so
“monstrous” that Knox would be quaking from his pulpit. Generally,
however, they are kind and clever people who will help you out of a tight
spot should you treat them with the respect they deserve for putting up
with your non-existent office skills, and for being a shoulder to cry on
when a boss has one of his “challenging” explosive moments. Moral of
the story folks, charming the boss may have got you the job; charming
the support staff of the Secretarial Pool will possibly keep you in it.
The whoops!
corner
From the stage 3 debate official report:
[Deputy Minister] Johann Lamont: Bill
Aitken mentioned the opinion of Lord
Lester QC... we are absolutely clear that
the bill – [Interruption.]
Jeremy Purvis: That must be Lord Lester
on the phone. [Laughter.]
Johann Lamont: I apologise, Presiding
Officer.
Sidelines Six of the best
Louise Farquhar tries to brighten up January with some
ideas if you want to spoil your Valentine next month
The Boatshed
Six of the best…
Romantic Retreats
Valentine’s Day may ostensibly be all
about love, but for some traders it can
really be about commerce. If you want
to romance the special person in your
life while avoiding the complimentary
glasses of indifferent fizz that come
with obligatory prix fixe menus, and
giant heart-shaped bonbons aren’t
really your style either, then look no
further. A hotel room is a romantic
adventure you can both share, more
elaborate than just dinner and much
more fun than waking up at home.
Here are my top six ideas:
Isle of Eriska, Argyll
Set in its own 300 acre estate on the rugged
west coast, this baronial mansion offers all
the trappings of a romantic retreat: canopied
beds, roaring log fires, suites with private
hot tubs, wonderful gardens and exquisite
food. There is also a modern spa with
swimming pool and a golf course for the
more energetic. Head Chef, Robert
MacPherson, maintains his three AA
Rosettes admirably, making use of local
seafood, game and even mushrooms found
on the estate. February bookings include
champagne, five course dinner, breakfast,
morning coffee, afternoon tea and leisure
facilities. Prices from £145 per person
(minimum two-night stay).
01631 720371
www.eriska-hotel.co.uk
The Witchery, Edinburgh
Located in an historic 16th century building
at the gates of Edinburgh Castle, the magical
and opulent Witchery is a dream-like
sanctum of seven sumptuous suites. The
decadent rooms have been the choice of
many Hollywood stars, including Jack
Nicholson and Pierce Brosnan, with their
gothic décor, rolltop baths for two and
heavily draped beds. Mood-enhancing lights
and Bose sound systems add a modern
touch, and dinner can be taken in the
sensationally theatrical restaurant
downstairs. Complimentary champagne,
newspapers, chocolates and breakfast are all
included. Prices are £295 per suite.
0131 225 5613
www.thewitchery.com
The Three Chimneys, Skye
As you trundle along the remote single track
roads that lead to the Three Chimneys in
Skye, it is hard to believe that luxury awaits
at your destination – but it does. The six
unique suites in The House Over-By are
fabulous, with kingsize beds, sofas, spacious
bathrooms, candles and views of the sea.
Next door the world famous restaurant
offers award-winning food with candlelit
tables and log fires. This is the perfect place
to “castaway” with a loved one for an
unhurried, intimate break. Prices are from
£160 per person including dinner.
01470 511258
www.threechimneys.co.uk
Abode, Glasgow
If stomping through mud and rain in the
Highlands is not your idea of a wildly
romantic break, then perhaps the boutique
chic of a contemporary city venue like Abode
is more appealing. After some retail therapy
or sampling the night life in town, the
Fabulous Suite is sure to satisfy anyone with
its oversized Vi-spring bed, 42 inch plasma
TV, large sofas and cashmere throws. If
going out at all seems a bit pointless then
room service from Michael Caines’ kitchen is
exceptional, and candles and massage oil
can be ordered up from the hotel spa…
Prices from £195 for the Fabulous Suite,
room only.
0141 572 6000
www.abodehotels.co.uk/glasgow
Ardanaiseig Hotel, Loch Awe
Perched on the edge of Loch Awe is the
Most Romantic Hotel in Scotland 2006, as
determined by the Scottish Hotel Awards. Of
particular interest, and the suite you really
must try to get, is The Boatshed. This
The Witchery
modern addition is a take on the original
Victorian boathouse and is the ultimate
escape for incurable romantics. The huge
bed suspended on a mezzanine offers
amazing views of the loch, and the bath has
picture book vistas of the mountains. The
main house is charming and filled with
antiques, and Gary Goldie’s two AA Rosette
restaurant won’t disappoint either. Prices
start at £170 per person, including
breakfast. Champagne and roses can be
arranged.
01866 833333
www.ardanaiseig.com
The Peat Inn, St Andrews
This 18th century coaching inn has recently
been taken over by Geoffrey Smeddle,
former Head Chef at Etain in Glasgow. There
are eight splendid suites with marble
bathrooms, views over farmland and
separate sitting rooms – recently awarded
five stars from VisitScotland. For couples in
love there is a special package including
flowers, half a bottle of champagne, an
exquisite six course tasting menu and
breakfast served in the privacy of your suite.
Prices from £275 for two.
01334 840206
www.thepeatinn.co.uk
For further ideas see:
The Plockton Hotel
www.plocktonhotel.co.uk
01599 544 274
Knockinaam Lodge, Portpatrick
www.knockinaamlodge.com
01776 810471
Ardeonaig Hotel, Perthshire
www.ardeonaighotel.co.uk
01567 820400
From the Journal archives
50 years ago
From the Journal of January 1957:
“Many solicitors will already have
made claims for supplementary
allowances for petrol [rationed
following the Suez crisis], and may
have received allocations which
they consider are inadequate to
meet their essential professional
needs. In such cases further
applications should be made at
once to the Regional Petroleum
Officers, emphasising that the
applicants are members of the
legal profession, and setting out in
detail the facts upon which their
claims are based, and showing that
public transport cannot be used.”
25 years ago
From “Self-promotional
advertising”, January 1982: “The
profession is
reminded that selfpromotional advertising
is not permitted…. This
reminder is being issued
to the profession because
the pressures of the commercial
world today are impinging more
and more upon the ethical
standards of the profession. The
attention of the Professional
Practice Committee has been
drawn to self-promotional
advertising with increasing
frequency in recent months.”

Professional briefing

Transcription

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