2014 SCOLAG (442, August) 161 - 180
SCOLAG
L E G A L
J O U R N A L
Contents
Editorial Comment
162
Workers Are Denied Justice
Internships & Access to the Profession
News Digest
163
Employment Law in a Criminal Trial
164
Robert Shiels
Regulatory Reform (Scotland) Act 2014
166
Brian Dempsey
Current Consultations
170
Legislation Update
172
Family Law Update
174
Carolynn Gray
Information Law Update
176
Alan S Reid
Book Reviews
178
Confiscation and Civil Recovery
Drafting Trusts and Will Trusts in Scotland
The Law Relating to Parent and Child in Scotland (3rd ed)
Events Diary
180
www.scolag.org
2014 SCOLAG (August)
August 2014, Issue 442
Pages 161 Page
- 180
161
Editorial Comment
SCOLAG LEGAL JOURNAL
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e reported recently on the drop in the number of applications to the
Employment Tribunal (2014 SCOLAG 71) after the release of statistics for
the last quarter of 2013, that being the first full quarter with the fee system in
operation. Just a few months on it is a full year since the introduction of fees and
the picture is clearer but even worse.
The over 80% reduction in the number cases being taken to Employment
Tribunal is on such a scale that there can be no reasonable doubt that legitimate
grievances are going unaddressed. In effect large numbers of workers have already been abandoned by the UK Government’s reform which is systematically
baring access to justice. The claim promoted by some in the Tory press that the
reduction in ET cases is proof that fees are working is patently ludicrous (“Hallelujah! The tribunal gravy train’s derailed”, Daily Mail, 29th July). Even the most
blinkered, prejudiced apologist for unfettered free-market exploitation could not
credibly contend that four out of every five employment tribunal complaints were
vexatious and illegitimate.
While the introduction of fees was criticised by many and challenged by trade
unions, now the Law Society of Scotland is also urging the UK Government to
reform or repeal the fees. The report of the Society’s Access to Justice Committee
(see p.163) could not put it any more succinctly: “We believe the current system is
highly unfair and is preventing legitimate cases being heard by a tribunal”.
Another report on other changes in employment practice shows that effective
access to justice is now needed all the more. Research from Citizens Advice
Scotland (see p.163) highlights the detrimental effects of over use and misuse of
zero-hour contracts. It underlines, for any who need it pointed out, that
employment is rarely an equal relationship. Employees require and deserve
effective means of protection from those employers who seek to exploit that
imbalance in power.
O
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Page 162
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Workers Are Denied Justice
ver the years editions of this journal and this column have included both
calls for and coverage of improving fair access to the legal profession (2012
SCOLAG 5; 2012 SCOLAG 212; 2013 SCOLAG 26). Enlivened by the Campaign
for Fair Access to the Legal Profession (CFALP) and the Scottish Young Lawyers
Association (SYLA) the Law Society of Scotland has made good progress on a
number of fronts. While funding for professional legal education remains a major
problem, one area in which current practitioners can have an immediate effect is
in relation to placements or internships.
For students work experience can be an invaluable and often necessary step
towards a legal career. Equally, for many firms an internship programme is a
useful part of their trainee recruitment. With ever greater competition for employment and more students willing to undertake unpaid positions it is welcome
that the Law Society of Scotland has published new guidance on whether and
when interns should be paid for their work.
Alistair Morris, president of the Society, said: “This is an important issue. We
want to make sure that individuals with the ability and desire to become a solicitor can do so no matter what their financial background might be. Students are
keen to gain practical experience and boost their vocational skills and for many
an internship is a route to gaining a traineeship at a law firm. However we know
that some students simply cannot afford to take on an unpaid role so are immediately at a disadvantage compared to some of their peers who have enough funds
to be able to do so. The guidance will provide clarity for firms about what they
can offer students in terms of work experience and internships and will help
promote good practice throughout the legal profession.”
A Note of Thanks to the SSC
The Scottish Legal Action Group would like to thank The Society of
Solicitors in the Supreme Courts of Scotland for its generous support of
the group and its journal.
The group hopes that members and readers will in turn support the
Society which continues to maintain a consistently progressive and
enlightened attitude to the pursuit of legal practice. To learn more about
the Society visit its web site - www.ssclibrary.co.uk.
The Scottish Legal Action Group is a recognised charity and relies entirely
upon members support and donations.
www.scolag.org
2014 SCOLAG (August)
News Digest
Zero Hours Contracts
Thousands of working Scots are on the
edge of poverty, due to the misuse of zero
hours contracts by rogue employers. That’s
the finding of a new report published by Citizens Advice Scotland.
Zero hours contracts (ZHCs) allow the
employer to vary the amount of hours a person works, week by week. The system is
meant to allow flexibility for both employers
and workers. However, the CAS report finds
that Scottish CABs have reported a sharp rise
this year in the numbers of clients who are in
financial crisis because of their ZHC. Among
the findings:
· Some workers go for long periods with
few or no hours, therefore little or no pay.
· others have hours which fluctuate widely,
or changes imposed at short notice - making it hard to plan their finances.
· Some employers don’t tell their staff the
job is a ZHC when they are taken on.
· In a few cases, employers have drastically
cut an employee’s hours in what seems
like an effort to force them to resign.
· Workers on ZHCs often can’t claim any
benefit or tax credits, making them entirely reliant on the income from this job,
and having to turn to debt or foodbanks
if their hours are cut.
The full report, Working at the Edge: Zero
Hours Contracts, is available from the CAS web
site via http://bit.ly/wate-zhc.
Shrieval Appointments
Her Majesty the Queen, on the recommendation of the First Minister has appointed
six sheriffs and three sheriffs principal.
On 23rd June 2014 Her Majesty appointed
as sheriff: Mrs Aisha Yaqoob Anwar, Solicitor
(Glasgow and Strathkelvin); Ms Lorna Allison
Drummond, QC (Tayside, Central and Fife);
Ms Alison Nancy Stirling, Advocate and Mr
Gordon Fleetwood, Solicitor (Grampian,
Highland and Islands); Ian Macdonald
Fleming, Solicitor Advocate (North Strathclyde); and Mr Brian Anthony Mohan,
Solicitor (South Strathclyde, Dumfries and
Galloway). On 2nd July Her Majesty appointed
as Sheriff Principal: Mr Duncan Law Murray
(North Strathclyde); Sheriff Ian Ralph
Abercrombie QC, (South Strathclyde, Dumfries and Galloway); and Sheriff Marysia
Lewis (Tayside, Central and Fife). First Minister Alex Salmond nominated those
recommended for appointment on the basis
of a report by the independent Judicial Appointments Board for Scotland.
Inspector of Prisons Annual Report
David Strang QPM has published his first
annual report as Her Majesty’s Chief Inspector of Prisons for Scotland. It details the work
and findings of three full inspections - HMP
Low Moss, HMP Edinburgh and HMP Inverness - and two follow-up inspections - HMP
Barlinnie and HMYOI Polmont.
The report notes recurring recommendations on the need for improved
communication of important information to
the healthcare staff and prison officers in
respect of both new prisoners and those
transferred between prisons. It also highlights the unacceptability of allocating
untried and convicted prisoners to share a
cell. HM Chief Inspector of Prisons for Scotland Annual Report 2013-2014 is available
from the Scottish Government website via
http://bit.ly/HMCIPS14.
Benefit Sanctions
Thousands of sick, disabled and unemployed Scots are being left in poverty as their
benefit payments are stopped, according to
Citizens Advice Scotland.
In a new report published in July CAS
finds that many people hit by benefit ‘sanctions’ are forced into poverty and ill health,
often having to rely on foodbanks. The report
also reveals that many people who are hit by
a sanction are not told the reason for it, or how
to appeal against it.
The report is one of the most detailed examinations of the impact of sanctions in
Scotland so far. It is based on real case evidence from across the Scottish CAB service,
and also includes the findings of a survey of
Scottish CAB advisers. These include:
· 94 per cent of Scottish CAB advisers say
they have seen an increase in people coming to the CAB in the last two years
because of benefit sanctions.
· 97% of advisers say claimants skip meals
because of being sanctioned, and 90% say
that sanctions have led directly to an increase in demand for foodbanks.
· 60% of advisers say claimants generally
don’t receive notification of their sanction
in advance, and 90% say that claimants
do not generally understand the reasons
for the sanction or how to avoid them in
future.
· advisers say that people under 25, disabled people, and single people were most
likely to be affected by sanctions.
The full report, “Sanctioned: what benefit?”, is available from the CAS web site via
http://bit.ly/CAS-swb.
President of Scottish Tribunals
The Rt Hon Lady Smith has been named
as the first President of the Scottish Tribunals,
the new two-tier structure for devolved tribunals under the Tribunals (Scotland) Act
2014.
Under Act, the Lord President, Lord Gill,
has overall leadership of the Scottish Tribunals. He has formally assigned Lady Smith to
the President of the Scottish Tribunals, to
whom he may delegate various functions.
Lady Smith has wide experience of tribunals work. She was a judge of the Employment
Appeal Tribunal for eight years and she chairs
the Scottish Tribunals Forum and the Reserved Tribunals Group. She also represents
the interests of the Lord President, in relation
to tribunals where the relevant law has not
been devolved, on the Tribunals Judicial Executive Board.
ET Fees a Barrier to Justice
The Law Society of Scotland has urged
the Scottish and UK Governments to rethink
employment tribunal fees.
In a report published on Monday, 28 July,
the Law Society has said the fees represent a
major barrier to access to justice and are behind an 81% drop in the number of cases
going before employment tribunals in the UK
since their introduction in July 2013. Stuart
Naismith, convener of the Law Society’s Access to Justice Committee, said: “The effect of
introducing fees, ostensibly to help meet the
costs of running the tribunal system, has been
drastic. We believe the current system is
highly unfair and is preventing legitimate
cases being heard by a tribunal”.
The full report is available from the Law
Society of Scotland’s web site, via http://bit.ly/
LSS-etf.
Personal Insolvencies Decrease
The number of personal insolvencies in
Scotland continue to decrease while uptake
of the Debt Arrangement Scheme (DAS) has
increased.
Last month the Accountant in Bankruptcy
(AiB) released official statistics reporting personal and company insolvencies in Scotland
for the first quarter of 2014-15. The figures
show that personal insolvencies fell by more
than a quarter on the same period of the previous year. A total of 2,968 were recorded
during this period which is the lowest recorded total since the first quarter of 2005-06.
The number of protected trust deeds
(PTDs) recorded fell to its lowest quarterly
total since DAS was introduced in 2004. The
total recorded this quarter was 40.5% lower
than the corresponding quarter of the previous year.
The number choosing to enter the statutory debt management solution, DAS,
increased as 1,261 were approved which is
above the level of PTDs for the first time. A
total of £8.6 million was repaid through this
Scheme in the first quarter of 2014-15.
The full statistical release is available via
http://bit.ly/AiB-q1s14.
First Time Buyer Schemes
The Scottish Government has published
administrative procedures for two shared
equity schemes which are part of the range of
assistance from under the Low-Cost Initiative
for First Time Buyers (LIFT).
The Open Market Shared Equity Scheme
allows people to buy homes that are for sale
on the open market on a shared equity basis
with the Scottish Government, through Registered Social Landlords. The procedures for
the scheme are at http://bit.ly/NSSE-ap.
The New Supply Shared Equity Scheme
aims to help people on low to moderate incomes access home ownership and to buy a
new build home from a Registered Social
Landlord. Its administrative procedures are
at http://bit.ly/NSSE-ap.
2014 SCOLAG (August)
Page 163
Case Note
Criminal Law
Employment Law in a Criminal Trial
Robert Shiels*
I
n an employment law update in this journal Elouisa Crichton
alerted readers to the then recent decision of Perry v. Imperial
College Healthcare NHS Trust, UKEAT/0473/10/JOJ, otherwise
unreported: see 2012 SCOLAG 21. The summary of the decision of the Employment Appeals Tribunal concluded with the
telling comment that employers should be careful to consider
all evidence before it, including medical evidence, when determining whether an employee who has two jobs has acted
dishonestly in taking sick leave from one and not the other.
The apparent oddity in the employment law case was that
Miss Perry was a midwife working as such but employed by
two separate NHS trusts. In one job, that with Imperial College
Healthcare NHS Trust, she went out to see patients at their
homes. In due course she had trouble with her knees which
problem had not been corrected by surgery but rather had been
exacerbated by surgery. In that regard she was signed off as
unfit and in receipt of statutory sick pay. In her other job, with
Ealing Primary Care Trust, she had a sedentary job and she
was thus not inhibited from working because of the knee
problem.
Imperial College Healthcare NHS Trust dismissed Miss
Perry when they discovered that she was claiming statutory
sick pay and yet still working with Ealing Primary Care Trust.
A full discussion of Perry v. Imperial College Healthcare NHS Trust
is unnecessary for present purposes: these require reference
only to a few paragraphs in the judgement of the Employment
Appeal Tribunal at which Miss Perry was an appellant in person.
The dismissing Trust relied on a Counter Fraud report when
a letter was sent to Miss Perry (see judgement para 24) that
included the assertion that: “... [the report clarified] that an
employee cannot work for another employer while in receipt
of occupational sick pay or statutory sick pay, and that the
interpretation of this is treated as a strict interpretation. The
reason being that you would be being paid twice; as you would
be providing services to another employer while you should
be using your skills and abilities for the benefit of your primary
employer. The implications of this to the primary employer are
financial loss, the need for staff cover with associated financial
loss and the inconvenience to other team members which may
risk a potential detrimental effect on patient care. [The author
of the report] explained that this situation would be considered
a fraud.”
Miss Perry was considered to have acted in a manner that
constituted gross misconduct and she was summarily
dismissed. The Employment Appeal Tribunal members thought
that the conclusion about fraud was far in excess of what was
legitimate: (judgement para 29). Further: “far from a person
not being allowed to work for two employers at the same time,
it subsequently emerged that this was relatively common. The
position is covered by the terms and conditions of employment
where the only inhibition on a person working for more than
one employer, or in more than one employment, concerns their
working over the 48 hour week compliant with Working Time
Regulations.” Moreover, lest there be any residual doubt on
the point, the Employment Appeal Tribunal noted: “...in respect
of statutory sick pay, it is perfectly in order for an employee
with two employments to be claiming sick pay in respect of
one employment whilst continuing to work under the other.”
It is a tangential matter but Miss Perry was summarily
dismissed and (judgement para. 35) the emphasis of the
Page 164
2014 SCOLAG (August)
reasoning by management was on money obtained permanently
from the trust apparently by deception of fraud. The
Employment Appeal Tribunal noted (judgement para. 36) that
later the focus had changed and was not so much on money as
her failing to inform the Imperial College Trust that she was
then also working for the Ealing Trust, thereby depriving the
former of an opportunity to consider whether, given that she
was obviously capable of some work while she was off sick, it
might be possible to redeploy her for the benefit of the Trust
and Miss Perry herself, to some other work.
The decision of Perry v. Imperial College Healthcare NHS Trust
was in a judgement that was freely available and so it was no
surprise to find it the subject of a note on the NHS National
Services Scotland, Central Legal Office, Employment Update,
for October 2011. Two lessons were offered to the interested
reader: first, the “most obvious” lesson is that employers who
realise, during the course of an appeal against dismissal, that
the original reason for dismissal can no longer stand, should
not simply attempt to ‘salvage’ that decision by confirming the
dismissal on new grounds. The procedure should ideally be
started afresh and the case considered with an open mind
(judgement para. 48).
The second “clear” lesson is that an employee with two jobs
for two different employers can be on sick leave (and receive
statutory sick pay) from one employer, while continuing to
perform the duties for the other employer. “This only becomes
a problem if the circumstances suggest that the employee is
not really incapable of performing the first job, or is carrying
on the second job during the hours she would otherwise have
worked for the first employer.”
These issues came to the fore in Harvie v. MacQueen,
unreported, a summary prosecution in Glasgow Sheriff Court
on 14 and 15 July 2014. As the accused was acquitted and, for
all one knows, litigation may yet appear elsewhere, it is neither
necessary nor desirable to consider the details at length: the
evidence was complex, perhaps too much so for a summary
prosecution. In brief, therefore, the accused worked for a part
of the NHS, ‘A’, while in a not inconsistent occupation with
different hours of work with a local authority, ‘B’. The charge
before the court was a fraud at common law. The Crown offered
to prove that the accused had engaged in a fraudulent scheme
by claiming statutory sick pay while certified ill for the NHS
employment while continuing to work with a local authority.
The sum said to have been obtained improperly was around
£5500.
A number of points, not necessarily case-specific, arose and
might be worth consideration now. First, the charge read as a
common law charge of fraud with the allegation of “fraudulent
scheme” in the libel. However, the remainder of the allegation,
‘working for A and claiming sick pay while also working for
B’, was on the authority of Perry v. Imperial College Healthcare
NHS Trust not unlawful, indeed to be bolder, it was lawful.
The idea of claiming sick pay for one job while working at
another is not by itself evidence of a fraudulent scheme if such
an arrangement is lawful.
Secondly, the fraudulent scheme might at least in part have
been proved to exist where it could be shown that managers at
A had not been told of the employment with B. However, the
contracts of employment were not lodged by the Crown for
the trial and it was not clear, by the end of the Crown case at
Employment Law in a Criminal Trial
any rate that the accused was under any obligation to tell
managers at A that she was coincidentally employed by B. It
was certain that departmental policy said made it clear in
writing in a manual that an employee of A had to tell managers
of A if a second job was obtained. It was not made certain how
any one employee was to know or held to have known of the
requirement to be found in substantial policy documents setting
out the rules of employment. Perhaps the contracts might have
provided a link but they were not in evidence and the relevant
paragraph seemed to have been a mere fraction of a substantial
volume of policy.
Thirdly, proof of the fraudulent scheme also proceeded on
the basis that the ‘illness’ certified by general medical
practitioners was either feigned or not as severe as suggested,
because the accused was capable of carrying out the duties of a
second job. Once the circumstances of Miss Perry were
understood, that is to say she had two jobs of a different
character that made different demands on her, it can be seen
that a worker might indeed be ill for one but fit for another. It
does not necessarily follow from the principle from Miss Perry’s
case that the illness must be a physical one: a debilitating anxiety
problem arising from one job may be irrelevant to the ability to
fulfil the duties in another job.
Fourthly, as in Perry v. Imperial College Healthcare NHS Trust,
the phrase ‘primary employer’ and ‘secondary employer’ were
used freely. There is a sense in which each employer suggested
in correspondence that they were the ‘primary employer’. Of
course, such a claim may not much matter in the end but
without the contracts of employment it cannot be said that one
employer has a prior claim over another, or that they are at one
with each other in how they might view the live issue of a
fraudulent scheme.
Finally, there is always a need to remind oneself of the first
principles of any case being litigated: Harvie v. MacQueen as a
criminal case proceeded or ought to have in expectation of
meeting the test of prosecution in the public interest. There still
remains a presumption of innocence and the fraudulent scheme
alleged required to be proved on corroborated evidence and
beyond reasonable doubt. These are well-established concepts
in the criminal courts but disputes involving intricate areas of
employment law, which of course has its own case law
authorities in the context of its own statutory regime, are not
easily amenable to analysis in those terms.
It is common to read and hear of the work patterns of the
modern employee changing and being substantially different
from earlier generations. The absence of large factories and the
rise of the IT generation, in difficult economic circumstances,
mean that individuals might quite unremarkably and quite
legitimately work at two or more different jobs. That might be
said of many and perhaps all trades and professions: a lawyer
in private practice might sit regularly as a tribunal judge.
All this is not to say that there are never difficulties: the
Employment Appeals Tribunal opined (judgement para. 49) that
it was unreasonable for the Imperial College Trust staff to have
concluded that summary dismissal for gross misconduct was
warranted for what by that stage had emerged was “a minor
deception, if, indeed that was what it was”. The criminal lawyer is apt to conclude, once again, that not all bad behaviour is
criminal behaviour.
* Dr. Robert S. Shiels SSC is a Solicitor Advocate writing widely
in Scots criminal law including, most notably, Criminal Advocacy
and Defective Representation, (W. Green, 2013), and (with
others) Renton & Brown’s Criminal Procedure Legislation (W.
Green, 2013).
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2014 SCOLAG (August)
Page 165
SCOLAG Guide
Statute
Regulatory Reform (Scotland) Act 2014
Continuing our regular basic guide to legislation of interest by Brian Dempsey*
T
he Regulatory Reform (Scotland) Act 2014 is an Act of the
Scottish Parliament to enable provision to be made for the
purpose of promoting regulatory consistency; to make provision
in relation to primary authorities; to enable provision to be made,
and to make provision, as respects regulatory activities, and
offences, relating to the environment; to make provision about
regulatory functions relating to marine licensing, planning and
street traders’ licences; and for connected purposes.
In force
The Bill passed Stage 3 on 16 January 2014 and received Royal
Assent on 19 February 2014. By section 61, sections 58 to 62 came
into force on the day following Royal Assent. Section 54 is not yet
in force and section 57 is in force from 30 June 2014 except for the
provisions set out in paragraphs 2 to 5, 7, 8(1) and (2), 9, 11(1) to
(3), 12 to 23 and 25 to 44 of schedule 3 to the 2014 Act (by the
Regulatory Reform (Scotland) Act 2014 (Commencement No. 1
and Transitional Provision) Order 2014/160, SSI 2014/160). All
other provisions were brought into force on the 30 June 2014 (by
SSI 2014/160).
ism Committee conducted its own consultation on the Bill and
issued a further call for evidence in relation to subsequently proposed Government amendments.11 In addition, the Rural Affairs,
Climate Change and Environment Committee issued its own call
for evidence on the Bill.12
In brief, Part 1 of the Act allows for national regulation systems impacting on businesses rather than the current system of
locally determined exercise of such functions; imposes a duty on
regulators to promote “sustainable economic growth” and allows
for a code of practice in relation to the exercise of regulatory functions. Part 2 (inserted at Stage 2) establishes the concept of the
“primary authority” where activities are carried out in more than
one local authority area (which means that the particular business will no longer have to comply with the regulatory practices
of both or all local authorities). Part 3, by far the largest element
of the Act, relates specifically to environmental regulation and
sets out new provisions in relation to the powers of both SEPA
and the courts.
Main Provisions
Genesis and progress of the bill
Part 1: Regulatory Functions
In common with the ConDem Government in Westminster
and most others the Scottish Government is concerned with lessening the “regulatory burden” on businesses while also being seen
to respond to concerns about ongoing degradation of the environment. The Scottish Government intends that this Act will
“improve the way regulation is developed and applied, creating
more favourable business conditions in Scotland and delivering
benefits for the environment. It will protect our people and environment, help businesses to flourish and create jobs.”
Part 1 of the Act is intended to make provision to improve
regulatory consistency, ensure that regulatory functions are exercised in a way that contributes to sustainable economic growth
and encourage regulators to adopt practices that are consistent
with regulatory principles.
The Regulatory Reform (Scotland) Bill 2013, SP Bill 26 (a Government Bill) was introduced on 27 March 2013 by John Swinney,
Cabinet Secretary for Finance, Employment and Sustainable
Growth and supported by Paul Wheelhouse and Fergus Ewing.
The lead committee was Economy, Energy and Tourism. The
Committee recommended approval of the general principles in
its Stage 1 Report by majority.1 The Bill passed Stage 1 on 12 November 2013 by 74 votes to 35 (Labour and Green MSPs
opposing).2 The central concern for Labour was described as “the
loss of local accountability when regulations are made, changed
or removed” and whether “local needs” would be served.3 A further point of concern for Labour was the inclusion of the term
“sustainable economic growth” which, it was said, lacked a clear
legal definition.4 The concerns of the Green MSPs were that the
proposed duty on regulators to promote “sustainable economic
growth” could be in conflict with what might be seen as their
primary or original duty.5 A number of amendments were accepted, rejected or withdrawn at Stage 2 (19 November 2013).6
The Bill passed Stage 3 on 16 January 2014 by 93 votes to 2 with 1
abstention following a relatively small number of amendments.7
The Scottish Government consulted on the various policies
behind the Bill in a number of consultation exercises. The “Better
Regulation” elements were consulted upon in late 2012 in Proposals for a Better Regulation Bill. 8 The “Better Environmental
Regulation” elements were consulted upon in summer 2012 in
the Consultation on Proposals for an Integrated Framework of Environmental Regulation.9 In addition the provisions in Chapter 5
(“General Purpose of SEPA”) were consulted upon in the Proposals for Future Funding Arrangements for the Scottish Environment
Protection Agency in late 2012.10
During its Stage 1 scrutiny the Economy, Energy and Tour-
Page 166
2014 SCOLAG (August)
Section 1 gives the Scottish Ministers power to by regulation
make any provision which they consider will encourage or improve consistency in the exercise by regulators of regulatory
functions. Such power may only be used following consultation
with the affected regulators and such persons or bodies as appear to represent the interests of persons substantially affected
by the proposed regulations.”Consistency” here includes consistency in the way in which particular and different regulators, their
employees or their agents impose, set, secure compliance with or
enforce a regulatory requirement.
In Part 1 “regulator” means a person, body or office-holder
listed in schedule 1 and these are the Accountant in Bankruptcy,
the Food Standards Agency, Healthcare Improvement Scotland,
all local authorities, the Scottish Charity Regulator, the Scottish
Environment Protection Agency, the Scottish Fire and Rescue Service, the Scottish Housing Regulator, Scottish Natural Heritage,
Social Care and Social Work Improvement Scotland and
VisitScotland. The Scottish Ministers may, by order, add to or remove from this list.
Section 3 provides that regulators must comply with regulations issued under s.1 except to the extent that the regulator lacks
the powers necessary to comply, or the regulations impose on
the regulator a requirement that conflicts with any other obligation imposed on the regulator by or under an enactment: this
relates to the concerns expressed by Labour and Green MSPs in
relation to potential conflicts between, say, a regulator’s duty to
protect the environment and a duty imposed under s.1. Should
regulators fail to comply with s.1 regulations the Scottish Ministers may declare the regulator to have so failed and direct the
regulator to take steps to remedy the failure within such reasonable period as may be so specified. In addition the Scottish
Ministers may act themselves to secure the action set out in the
direction, may arrange for any other person to take the steps or
may apply to the Court of Session for an order requiring the
regulator to take the steps.
Regulatory Reform (Scotland) Act 2014, asp 3
Section 4 provides that in exercising its regulatory functions,
each regulator must contribute to achieving sustainable economic
growth, except to the extent that it would be inconsistent with the
exercise of those functions to do so. Scottish Ministers may issue
guidance in relation to the carrying out of this duty. Further, by
s.5, the Scottish Ministers may issue a code of practice in relation
to the exercise of regulatory functions by a regulator. By s.6, before issuing or revising a code of practice the Scottish Ministers
must prepare a draft and consult persons appearing to them to
be representative of regulators in respect of which the code or
revised code would apply. In preparing the draft the Scottish
Ministers must seek to secure that it is consistent with the following principles - that regulatory functions should be exercised in a
way that is transparent, accountable, proportionate and consistent, and is targeted only at cases in which action is needed, and
also that that regulatory functions should be exercised in a way
that contributes to achieving sustainable economic growth. Such
codes or revisions thereof are subject to approval or disapproval
by resolution of the Parliament.
Part 2: “Primary Authorities”
Part 2, which was added at Stage 2, provides for the Scottish
Ministers to nominate a local authority as a primary authority in
respect of an activity carried on by a “regulated person” where
he or she carries on their regulated activities within two or more
local authority areas (s.8). Section 9 provides that a “relevant function” in relation to a local authority means a regulatory function
exercised by that authority and specified for the purposes of this
Part by order made by the Scottish Ministers.
Section 10 provides that the Scottish Ministers or their delegate may nominate a local authority to be the “primary
authority” for the exercise of the relevant function in relation to
the regulated person. By s.11 the Ministers may only nominate a
local authority as the “Primary Authority” if they consider the
authority suitable for nomination and the authority and the regulated person have agreed in writing to the nomination. The
Scottish Ministers must maintain or cause to be maintained a register of such nominations.
Section 12 provides that the Scottish Ministers may by order
make further provision about the exercise of relevant functions
by primary authorities in relation to regulated persons but only if
they have consulted any primary authority to which the order
would apply, such persons or bodies as appear to the Scottish
Ministers to represent the interests of persons substantially affected by the proposed order and such other persons or bodies as
the Scottish Ministers consider appropriate. Such further provisions may include requirements upon another local authority to
notify the primary authority before taking any enforcement action against a regulated person pursuant to the relevant function
and also set out provisions in relation to inspection plans.
Where a primary authority is nominated under s.10 then the
primary authority has the function of giving advice and guidance to both the regulated person and the other local authorities
having the relevant function as to how they should exercise that
function in relation to the regulated person (s.13) and may charge
the regulated person such fees as it considers represent the costs
reasonably incurred by it in exercising functions as the primary
authority under or by virtue of this Part in relation to the regulated person (s.14). Section 15 provides that the Scottish Ministers
may, following consultation with appropriate person, issue guidance to local authorities about the operation of this Part and local
authorities must have regard to any such guidance.
Part 3: Environmental Regulation
Chapter 1: Regulations for protecting and improving
the environment
The purpose of this Chapter of Part 3 is to enable provision to
be made for or in connection with protecting and improving the
environment, including regulating environmental activities and
implementing EU obligations and international obligations relating to protecting and improving the environment (s.16).
Section 17 gives definitions of certain terms. These are “environmental activities” which means activities that are capable of
causing, or liable to cause, environmental harm and activities
connected with such activities; “protecting and improving the
environment” which includes preventing deterioration of, and
protecting and enhancing, the status of ecosystems and promoting the sustainable use of natural resources based on the long-term
protection of available natural resources; “activities” which means
activities of any nature whether industrial, commercial or otherwise and whether carried on in particular premises or otherwise
and includes the production, treatment, keeping, depositing or
disposal of any substance and “environmental harm” which
means harm to the health of human beings or other living organisms, harm to the quality of the environment, harm to the quality
of air, water or land, and other impairment of, or interference
with, ecosystems, offence to the senses of human beings, damage
to property, or impairment of, or interference with, amenities or
other legitimate uses of the environment.
By s.18 the Scottish Ministers may by regulations make provision for any purpose for protecting and improving the
environment (as specified in Part 1 and 2 of schedule 2) and by
s.19 the Ministers must consult with any regulator on whom the
proposed regulations would confer functions and such other persons as they think fit, including such persons appearing to them
to be representative of the interests of local government, industry, agriculture, fisheries or small businesses as they consider
appropriate.
Chapter 2: SEPA’s powers of enforcement
Section 20 allows the Scottish Ministers to by order make provision for or about the imposition by SEPA of a fixed monetary
penalty on a person in relation to a relevant offence. A “relevant
offence” means an offence specified in an order made by the Scottish Ministers for the purposes of this Part (s.53). Such provision
must provide that a fixed monetary penalty may be imposed on
a person only where SEPA is satisfied on the balance of probabilities that the person has committed the offence to which the penalty
relates; is to be imposed by notice and may not be imposed on a
person in relation to an offence constituted by an act or omission
if a fixed monetary penalty has already been imposed on that
person in respect of the same offence constituted by the same act
or omission. The maximum amount of such penalty that may be
so specified is an amount equivalent to level 4 on the standard
scale as defined in s.225(1) of the Criminal Procedure (Scotland)
Act 1995.
Section 21 sets out detailed provisions in relation to the procedure for SEPA serving notice on a person and the content of
such notices (such as the grounds for imposing the penalty, the
right to make written representations, rights of appeal and the
consequences of non-payment). Any provisions must also ensure
that the grounds on which a person may appeal against a decision of SEPA include the grounds that the decision was based on
an error of fact, the decision was wrong in law and the decision
was unreasonable.
Section 22 deals with the interplay between fixed monetary
penalties and criminal proceedings. Where SEPA has issued a
notice of intent under s.21 no criminal proceedings may be commenced against the person in respect of that offence until the
person either discharges their liability or the period for them to
do so has ended. Thereupon criminal proceedings can be instigated and the period of time relating to the fixed monetary penalty
notice is not to be counted in calculating any period within which
criminal proceedings must be commenced. However, in a case
where a fixed monetary penalty is imposed on a person in respect of an offence constituted by an act or omission, no criminal
2014 SCOLAG (August)
Page 167
Regulatory Reform (Scotland) Act 2014, asp 3
proceedings may be commenced against the person in respect of
that offence constituted by that act or omission.
Sections 23 to 25 provide similar provisions in relation to “variable monetary penalties” with s.26 giving additional provisions
in relation to non-compliance. SEPA’s costs in relation to such
penalties are recoverable from the offender (s.30). Section 28 sets
out further requirements in relation to provisions dealing with
possible combinations of fixed monetary penalties, variable monetary penalties and criminal proceedings.
By s.27 the Scottish Ministers may by order make provision
for or about enabling SEPA to accept an “enforcement undertaking” from a person in a case where SEPA has reasonable grounds
to suspect that the person has committed a relevant offence. For
the purposes of this Chapter, an “enforcement undertaking” is
an undertaking to take action to secure that the offence does not
continue or recur; to secure that the position is, so far as possible,
restored to what it would have been if the offence had not been
committed or of a description specified by order by the Scottish
Ministers. Any order under s.27 may in particular include provision to the terms of an enforcement undertaking, publication of
an enforcement undertaking by SEPA, monitoring by SEPA of
compliance with an enforcement undertaking etc.
Section 29 relates to the possible provision for early payment
discounts, the payment of interest or other financial penalties for
late payment and for the enforcement of the penalty. Such provisions may also provide for SEPA to recover the penalty, and any
interest or other financial penalty for late payment, as a civil debt.
Under s.31 the Lord Advocate may issue guidance to SEPA
on the exercise of its functions relating to enforcement measures
and SEPA must comply with such guidance. Further, where SEPA
is given power by virtue of this Chapter to impose an enforcement measure in relation to an offence it must publish guidance
about how the offence is enforced, the sanctions to which a person who commits the offence may be liable, the action which SEPA
may take to enforce the offence, the circumstances in which SEPA
is likely to take any such action, and SEPA’s use of the enforcement measure. Where the Scottish Ministers have made provision
by order under ss.20 or 23 relating to the imposition by SEPA of a
monetary penalty or s.27 relating to the acceptance by SEPA of an
enforcement undertaking the order may require SEPA to publish
such information as may be specified as regards cases in which it
has done what the order permits it to do.
Chapter 3: Court powers
This Chapter relates to the treatment of those guilty of a “relevant offence”. By s.53 a “relevant offence” is an offence specified
in an order made by the Scottish Ministers for the purposes of
this Part.
Section 34 provides that where a person is convicted of a relevant offence, s.249(1) of the Criminal Procedure (Scotland) Act
1995 (compensation order against convicted person) has effect.
This, however, is subject to the modification that the reference to
payment of compensation in favour of the victim for any loss or
damage caused directly or indirectly to the victim is to be read as
if it included a reference to payment of compensation to a relevant person for costs incurred or to be incurred by the relevant
person in preventing, reducing, remediating or mitigating the
effects of any harm to the environment resulting directly or indirectly from the offence or any other harm, loss, damage or adverse
impacts so resulting from the offence and that the prescribed sum
is £50,000. Where a person is convicted by a court of a relevant
offence and the court proposes to impose a fine in respect of the
offence then the court must in particular have regard to any financial benefit which has accrued or is likely to accrue to the
person in consequence of the offence (s.35).
By s.36 the court may, instead of or in addition to dealing with
the person in any other way, make a “publicity order” requiring
Page 168
2014 SCOLAG (August)
the person to publicise in a specified manner the fact that the person has been convicted of the relevant offence, specified particulars
of the offence and specified particulars of any other sentence
passed by the court in respect of the offence. A person failing to
comply with a publicity order commits an offence.
Section 37 provides that where an offence under s.36(8) is committed by a relevant organisation and the commission of the
offence involves the connivance or consent, or is attributable to
the neglect, of a responsible official of the relevant organisation
then the responsible official (as well as the relevant organisation)
commits the offence. A “relevant organisation” means a company,
a limited liability partnership, a partnership (other than a limited
liability partnership) or another body or association and a “responsible official” means in the case of a company, a director,
secretary, manager or similar officer of the company; in the case
of a limited liability partnership, a member of the partnership; in
the case of a partnership (other than a limited liability partnership), a partner of the partnership or in the case of another body
or association, a person who is concerned in the management or
control of its affairs and in each case includes a person purporting to act in such a capacity.
Chapter 4: Miscellaneous
Section 38 applies where a person (“A”) commits a relevant
offence while acting as the employee or agent of another person
(“B”) and provides that B also commits the relevant offence and
is liable to be proceeded against and punished accordingly unless B can establish that B did not know that the relevant offence
was being committed by A, that no reasonable person could have
suspected that the relevant offence was being committed by A
and that B took all reasonable precautions and exercised all due
diligence to prevent the offence being committed. Section 39 provides a similar vicarious liability regime where in the course of
carrying on a regulated activity a person (“A”) commits a relevant offence, at the time the offence is committed, A is carrying
on the regulated activity for another person (“B”), and B manages or controls the carrying on of the regulated activity.
Sections 40 to 42 concern offences of “significant environmental harm”. Section 40 begins by providing that it is an offence for
a person to act, or permit another person to act, in a way that
causes or is likely to cause significant environmental harm or fail
to act, or permit another person not to act, in a way such that (in
either case) the failure to act causes or is likely to cause significant environmental harm except where such action or failure to
act takes place under an permissive enactment or, e.g., were necessary to avoid, prevent or reduce an immanent risk of serious
adverse effect on human health. The mens rea is intention to cause
such harm or recklessness or carelessness as to the possibility.
Environmental harm means—
(a) harm to the health of human beings or other living organisms,
(b) harm to the quality of the environment, including—
(i) harm to the quality of the environment taken as a whole,
(ii) harm to the quality of air, water or land, and
(iii) other impairment of, or interference with, ecosystems,
(c) offence to the senses of human beings,
(d) damage to property, or
(e) impairment of, or interference with, amenities or other legitimate uses of the environment.
and such harm is “significant” if
(a) it has or may have serious adverse effects, whether locally, nationally or on a wider scale, or
(b) it is caused or may be caused to an area designated in an order
by the Scottish Ministers for the purposes of this section.
In addition to, or instead of, dealing with a person convicted
of such an offence by way of a fine the court may, by s.41, order
Regulatory Reform (Scotland) Act 2014, asp 3
the person to take such steps as may be specified in the order to
remedy or mitigate the harm where it appears to the court that it
is within the power of the person to do so. Section 42 provides
that where an offence is committed by a relevant organisation
with the connivance, consent or neglect of a responsible official
of the relevant organisation, then that responsible official also
commits the offence. Sections 47 and 48 contain provisions relating to offences by partnerships in relation to carriers of controlled
waste (under the Control of Pollution (Amendment) Act 1989)
and waste management licenses (under the Environmental Protection Act 1990).
enact subordinate legislation. Sections 2, 3 and 7 of this Act are
excluded from such powers. All orders and regulations are subject to the negative procedure with the exception of an order under
ss.9, 12, 20 or 23; certain orders under ss.7 and 59(1); regulations
under s 1 and regulations under s.18 which contain provisions
that add to, replace or omit any part of the text of an Act – all of
which are subject to the affirmative procedure. By s.59, the Scottish Ministers may by order make such incidental, supplemental,
consequential, transitional, transitory or saving provision as they
consider necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.
Section 43 amends the Climate Change (Scotland) Act 2009
by inserting a new s.88A into that Act allowing for fixed penalty
notices to be issues in relation to “carrier bag offences” such as
failing to charge consumers for the supply of carrier bags.
Section 60 states that the Court of Session may, on the application of the Scottish Ministers or any public body or office-holder
having responsibility for enforcing the provision of the Act, declare unlawful any act or omission of the Crown which constitutes
such a contravention. While no contravention by the Crown of
any provision made by or under this Act makes the Crown criminally liable, nonetheless any provision made by or under the
provisions of this Act applies to persons in the public service of
the Crown as it applies to other persons.
Chapter 5: General purpose of SEPA
This single section Chapter provides for a “general purpose”
for SEPA, contained in a new s.20A of the Environment Act 1995.
Thus SEPA is to carry out the functions conferred on it by or under
this Act or any other enactment for the purpose of protecting
and improving the environment (including managing natural
resources in a sustainable way).
Finally, ss.61 and 62 are the commencement and short title
provisions respectively.
In carrying out its functions for that purpose SEPA must, except to the extent that it would be inconsistent with subsection
(1) to do so, contribute to—
The Bill as introduced, amendments to that version, explanatory notes, policy memorandum, SPICe research briefings, the
lead committee’s Stage 1 Report and the Official Report of both
Committee and Chamber debates are available at
www.scottish.parliament.uk/parliamentarybusiness/Bills/61582.aspx.
An updated version of the Act is available at www.legislation.gov.uk/
asp/2014/3/contents.
(a) improving the health and well being of people in Scotland,
and
(b) achieving sustainable economic growth.
Sources
Chapter 6: Reporting and interpretation
Section 52 provides that Scottish Ministers must, as soon as
practicable after the end of each calendar year, lay before the Scottish Parliament a report on the operation of this Part of the Act
while s.53 defines “relevant offence” as meaning an offence specified in an order made by the Scottish Ministers for the purposes
of this Part of the Act.
1.
www.scottish.parliament.uk/S4_EconomyEnergyandTourismCommittee/
Reports/eer-13-11w.pdf
2.
www.scottish.parliament.uk/parliamentarybusiness/
28862.aspx?r=9104&mode=pdf
3.
ibid at column 24283 et seq
Part 4: Miscellaneous
4.
This Part deals with marine licensing decisions, charges and
fees in relation to planning authorities’ functions and street traders’ licences.
It was suggested that the term “sustainable development” be used
instead, ibid at column 24297 et seq
5.
ibid at column 24301 et seq
6.
www.scottish.parliament.uk/parliamentarybusiness/
28862.aspx?r=8883&mode=pdf The bill as amended at Stage 2 is
available at www.scottish.parliament.uk/S4_Bills/
Regulatory%20Reform%20(Scotland)%20Bill/b26as4-stage2-amend.pdf
7.
The two votes against were from the two Scottish Green MSPs
www.scottish.parliament.uk/parliamentarybusiness/
28862.aspx?r=8699&mode=pdf
8.
See various documents at www.scotland.gov.uk/Publications/2012/08/
8403, www.scotland.gov.uk/Publications/2013/03/6019,
www.scotland.gov.uk/Publications/2013/03/1930, www.scotland.gov.uk/
Publications/2012/12/4140/0, and www.scotland.gov.uk/Topics/BusinessIndustry/support/better-regulation/BetterRegulationBillConsultation/
RRBConsultation/SGResponse
9.
See www.scotland.gov.uk/Resource/0039/00392549.pdf and
www.scotland.gov.uk/Resource/0041/00411494.pdf
Section 54 inserts new ss.63A and 63B into the Marine (Scotland) Act 2010. The new s.63B provides that in certain
circumstances where a person is aggrieved by a decision of the
Scottish Ministers under ss.28 and 29 of the 2010 Act the person
may make an application to the Inner House of the Court of Session to have the decision suspended or quashed where the decision
is found to be ultra vires or where the interests of the aggrieved
person have been substantially prejudiced by failure to comply
with any of the relevant requirements in relation to the decision.
Any proceeding under s.63A may only be taken with permission
of the Inner House (s.63B).
Part 5: General
Section 57 refers to Schedule 3 of the Act which makes minor
modifications of enactments and modifications consequential on
the provisions of this Act.
Section 58 concerns the exercise of the power of the Scottish
Ministers to make an order or regulations under this Act, i.e. to
* Brian Dempsey is a Lecturer at the School of Law, University
of Dundee
10. See www.scotland.gov.uk/Publications/2012/10/1984 and
www.scotland.gov.uk/Resource/0041/00411494.pdf
11. See documents via www.scottish.parliament.uk/parliamentarybusiness/
CurrentCommittees/62614.aspx
12. See documents at www.scottish.parliament.uk/parliamentarybusiness/
CurrentCommittees/62180.aspx
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2014 SCOLAG (August)
Page 169
Current Consultations
August 2014
For a full list of Scottish Government consultations and texts see www.scotland.gov.uk/Consultations
for UK Government consultations see www.gov.uk/government/publications
SCOLAG Legal Journal is happy to include
all types of consultations. Our pages are open
to campaigning groups, voluntary and
statutory bodies, MSPs and others. Please
send details to:
[email protected]
Environment Protection Agency
Closing 04/08/14
The Scottish Government invites views on the
Statutory Guidance on the General Purpose for
the Scottish Environment Protection Agency (SEPA)
and its contribution towards sustainable
development. The draft statutory guidance has
been developed by the Scottish Government as a
result of the new general purpose inserted into
the Environment Act 1995 by the Regulatory
Reform (Scotland) Act 2014. The full paper is
available via http://bit.ly/sepa-gpgr.
Contact Environmental Quality Division, Scottish
Government, Area 1-D (North), Victoria Quay,
Edinburgh, EH6 6QQ; [email protected].
Women On Board
Closing 04/08/14
This consultation will inform how the Scottish
Government will shape its proposals to the UK
Government on using legislation to achieve gender
equality on the boards of public bodies, through
the use of mandatory quotas of women. The
findings from this will also support the work of
the Scottish Government’s Public Appointments
and Corporate Diversity Programme. The full paper
is available via http://bit.ly/SG-WoB.
Contact Lesley Irving, Head of the Gender LGBT
Equality & Violence Against Women Team, Area 3H (South), Victoria Quay, Edinburgh, EH6 6QQ; or
email – [email protected].
Child Poverty
Closing 14/08/14
The UK Government is seeking views on a proposed
new persistent child poverty target for the UK, to
be achieved by 2020. The full paper is available
via http://bit.ly/2020pcpt.
Contact Persistent Poverty Consultation, Child
Poverty Unit, Department for Education, 1st Floor,
Sanctuary Buildings, Great Smith Street, London
SW1P 3BT; or email –
persistentchildpovertytarget.consultation@
childpovertyunit.gsi.gov.uk.
Legal Writings (Counterparts and Delivery)
(Scotland) Bill
operating and any further changes that may be
needed to improve the process. As with last year’s
call for evidence, Dr. Litchfield is interested in
receiving such information from both individuals
and organisations. Links to the call for evidence
in different formats can be accessed via http://
bit.ly/WCA-yr5.
Contact WCA Independent Review Team, 3rd Floor,
Caxton House, Tothill Street, London, SW1H 9NA;
or email – [email protected].
Public Bodies, Joint Working (Set 2)
Closing 18/08/14
The Scottish Government seeks views on a second
set of draft regulations under the Public Bodies
(Joint Working) (Scotland) Act 2014 relating to:
Prescribed groups which must be consulted when
preparing or revising Integration Schemes;
preparing draft strategic plans; and when making
decisions affecting localities; Membership, powers
and proceedings of Integration Joint Boards;
Establishment, membership and proceedings of
integration joint monitoring committees;
Prescribed membership of strategic planning
groups; and Prescribed form and content of
performance reports. The full paper and
accompanying documents can be accessed via
http://bit.ly/pbjw14-dr2.
Contact Alison Beckett, Scottish Government, Area
2 E.R., St. Andrews House, Regent Road,
Edinburgh, EH1 3DG; 0131 244 4824; or email
[email protected].
Care Act 2014 Regulations
Closing 18/08/14
This seeks views on the draft regulations relating
to the Care Act 2014 on cross-border placements,
dispute resolutions and provider failure. The Act
creates a legislative basis for local authorities in
England, Wales and Northern Ireland to make
cross-border placements for those who require
care in residential accommodation in Scotland.
Equivalent provisions exist in Scottish, Welsh and
Northern Irish legislation allowing authorities in
those areas to make cross-border placements.
These provisions will be supplemented further to
allow local authorities to make cross-border
placements comprising of accommodation with
nursing care.
Contact Integration and Reshaping Care Division,
3ER, St Andrews House, Regent Road, Edinburgh,
EH1 3DG; or email [email protected].
Training Justices of the Peace
Work Capability Assessment
Closing 20/08/14
The Lord President has launched a review of the
arrangements for training of Justices of the Peace
in Scotland. A consultation paper outlines the “case
for change” and responses will assist in
determining what, if any, reforms may need to be
made. Full instructions on how to respond can be
found on page 1 of the consultation document,
which is available via http://bit.ly/JP-tc.
Contact Andrew Nicholson, Judicial Institute for
Scotland, Parliament House, 11 Parliament Square,
Edinburgh, EH1 1RQ; or email [email protected].
Closing 15/08/14
Dr Paul Litchfield has been appointed by the
Department for Work and Pensions to undertake
the fifth independent review of the Work
Capability Assessment (WCA). This is the final
statutory independent review of the WCA, as
required by s.10 of the Welfare Reform Act 2007.
This call for evidence is aimed at those who have
information that is relevant to how the WCA is
Closing 22/08/14
The Health and Sport Committee of the Scottish
Parliament invites written evidence to inform its
consideration of Stage 1 of the Mental Health
(Scotland) Bill. The overarching objective of which
is stated as: to help people with a mental disorder
to access effective treatment quickly and easily.
In Part 1 the Bill makes provision about the
Closing 15/08/14
The Finance Committee has issued a call for
written evidence as part of its consideration of
the financial implications of the provisions of the
Legal Writings (Counterparts and Delivery)
(Scotland) Bill. The call for evidence and links to
the Bill and Financial Memorandum can be
accessed via http://bit.ly/SP-lw2.
Contact the Committee clerking team on 0131 348
5451 or email –
[email protected].
Page 170
Mental Health (Scotland) Bill
2014 SCOLAG (August)
operation of the Mental Health (Care and
Treatment) (Scotland) Act 2003 in relation to:
procedure for compulsory treatment; emergency,
short term and temporary steps; suspension of
certain orders; orders regarding level of security;
removal and detention of patients; time for appeal
referral or disposal; representations by named
persons; advance statements; support and
services; cross border and absconding patients;
and arrangement for the treatment of prisoners.
Part 2 makes provision about criminal cases. Part
3 makes provision, through amendments to the
Criminal Justice (Scotland) Act 2003, for the
introduction of a notification scheme for victims
of mentally disordered offenders.
For details of the evidence sought see the call for
evidence (available via http://bit.ly/SP-MHBs1).
Contact Health and Sport Committee, T3.60,
Scottish Parliament, Edinburgh EH99 1SP; or email
– [email protected].
Antisocial Behaviour Noise
Closing 25/08/14
The Scottish Government has issued this call for
evidence to support a policy review of the noise
regime under the Antisocial Behaviour (Scotland)
Act 2004 Part 5. The noise provisions which came
into force in 2005 introduced a fixed penalty notice
deterrent for domestic noise offences for any part
of the day or night. The full paper is available via
http://bit.ly/asbnr14.
Contact Linda Story on 0131 244 1521 or email
[email protected].
Welfare Funds (Scotland) Bill
Closing 28/08/14
The Welfare Reform Committee invites all
interested individuals and organisations to submit
written evidence on the Bill and its likely impact.
The Committee welcomes views on all of the Bill’s
proposals. In particular, the Committee would like
submissions to address ten questions set out in its
call for evidence. The call for evidence and links
to the bill and accompanying documents can be
accessed via http://bit.ly/SP-wfbc.
Contact Clerk to the Welfare Reform Committee,
Room TG.01, Scottish Parliament, Edinburgh, EH99
1SP; or email –
[email protected].
British Credit Unions at 50: call for evidence
Closing 01/09/14
To mark the 50th anniversary of credit unions in
Great Britain, the Economic Secretary to the
Treasury, Andrea Leadsom, has issued a call for
evidence on the future of the credit unions sector.
It seeks views from credit unions, the private
sector and wider society on what the credit union
sector should look like in the future. Specifically:
what is the credit union movement’s vision for
their sector, and how can the government help
them achieve it; and what more can the private
sector and wider society do to support credit
unions? The full paper is available via http://
bit.ly/HMT-cu50.
Contact [email protected]
Investigative Powers for SSPCA Inspectors
Closing 01/09/14
This Scottish Government consultation is seeking
views on an extension of the powers available to
Scottish Society for the Prevention of Cruelty to
Animals (SSPCA) Inspectors, relating to wildlife
crime investigations. In particular, views are sought
on the advantages and disadvantages of granting
a range of possible new powers including, without
a warrant, to: enter land other than dwellings or
lockfast premises; search for, search or examine
Current Consultations - August 2014
things if they suspect that evidence will be found
in or on that thing; and seize evidence. The full
paper is available via http://bit.ly/SG-ipsspca.
Contact Karen Hunter on 0131 244 7140. Respond
to SSPCA Wildlife Crime Consultation
Wildlife Management Branch, Scottish
Government, Area 1-C North, Victoria Quay,
Edinburgh, EH6 6QQ; or email [email protected].
Community Empowerment (Scotland) Bill
Closing 05/09/14
The Scottish Parliament’s Local Government and
Regeneration Committee has issued a call for
written evidence as part of its Stage 1
consideration of the Community Empowerment
(Scotland) Bill (see http://bit.ly/SP-CEB).
Contact Clerk to the Local Government and
Regeneration Committee, Committee Office,
Room T3.40, Scottish Parliament, Edinburgh, EH99
1SP; or email – communityempowermentbill@
scottish.parliament.uk.
Personal Independence Payment Assessment
Closing 05/09/14
The Department for Work and Pensions has
appointed Paul Gray CB to undertake the first
independent review of the Personal Independence
Payment (PIP) assessment. This is the first
independent review as required by s.89 of the
Welfare Reform Act 2012.
This call for evidence is aimed at organisations
and individuals who have information that is
relevant to how the PIP assessment is operating
both for new claims and Disability Living Allowance
(DLA) reassessment claims. This includes claims
made under the Special Rules for terminally ill
people. The review includes all stages of the PIP
process – from making a claim, the face to face
consultation, the daily living and mobility criteria
and getting a decision.
The call for evidence is available via http://bit.ly/
PIP-air.
Contact PIP Independent Review Team, Room 3S25,
Zone South H, Quarry House, Quarry Hill, Leeds,
LS2 7UA; or email –
[email protected].
Fatal Accident Inquiries
Closing 09/09/14
This consultation is to seek views on policy
proposals for a prospective Bill on fatal accident
inquiries in Scotland. The proposals, arising from
recommendations made by Lord Cullen in his 2009
Review of Fatal Accident Inquiry Legislation,
intend to help modernise the way in which fatal
accident inquiries are handled. It will also seek
views on:
building on the recommendations
implemented by the Crown Office;
extending the categories of death in which it
is mandatory to hold a fatal accident inquiry;
obliging those to whom sheriffs direct
recommendations at the conclusion of the
inquiry to respond to the sheriff about
compliance;
permitting discretionary FAIs into deaths of
Scots abroad where the body is repatriated
to Scotland;
options for holding FAIs in alternative
accommodation.
For the full paper see http://bit.ly/SG-crfai.
Contact Marisa Strutt on 0131 244 3311. Respond
to Civil Law and Legal System Division
Justice Directorate, Scottish Government, GW.15,
St Andrew’s House, Regent Road, Edinburgh, EH1
3DG; or [email protected].
Scottish Law Commission
Closing 12/09/14
The Scottish Law Commission is seeking
suggestions for suitable law reform projects to
include in its next Programme of Law Reform, its
Ninth, which will commence in 2015. The
Programme will include projects carried forward
from the Eighth Programme regarding: compulsory
purchase law; moveable transactions; contract
law; heritable securities; and homicide.
Suggestions for the Ninth Programme will be
decided on according to the importance and
suitability of the subjects and the resources
available to the Commission. For further details
see http://bit.ly/slc-cc.
Contact Joan Melville, Scottish Law Commission,
140 Causewayside, Edinburgh, EH9 1PR; 0131 668
2131; or email [email protected].
National Minimum Wage
Closing 15/09/14
The Department for Business, Innovation & Skills
seeks views on whether the draft National
Minimum Wage (consolidation) regulations are
clear and workable. See http://bit.ly/nmwreg.
Contact Vibeke Bjornfors, National Minimum Wage
policy team, BIS, 3rd Floor, 1 Victoria Street,
London, SW1H 0ET; or email –
[email protected].
National Care Standards
Closing 17/09/14
The National Care Standards help people who
receive care understand what to expect from
services, and services understand the standards
they should deliver. There are currently 23 sets of
standards covering a wide range of care services,
from childminders and nurseries to care homes
and independent hospitals. The Scottish
Government is seeking views on how standards
should be updated and improved to meet current
expectations and models of service delivery. The
full paper is available via http://bit.ly/SG-ncsr.
Contact Carly Nimmo, Mental Health and
Protection of Rights Division, Scottish Government,
Area 3EN, St Andrews House, Edinburgh; 0131 244
3743; or email - [email protected].
Antisocial Behaviour
Closing 19/09/14
The Scottish Government is seeking views on three
areas of proposed legislative change: antisocial
behaviour orders; closure order powers; and
antisocial behaviour fixed penalty notices. The
Scottish Government is generally favourable to the
changes suggested in this consultation document
but will consider and reflect on all responses
before deciding on the way forward. The paper is
available via http://bit.ly/SG-asba-c.
Contact Antisocial Behaviour Team, Community
Safety Unit, Scottish Government, Area 1W, St
Andrews House, Regent Road, Edinburgh, EH1 3DG;
or email – [email protected]
Organ & Tissue Donation (Scotland) Bill
Closing 25/09/14
Anne McTaggart MSP seeks views on her proposal
for a Bill to amend the law on human
transplantation, including by authorising (in
certain circumstances) the posthumous removal
of organs and tissue from an adult who had not
given express consent. The full paper is available
via http://bit.ly/SP-podb.
Contact Anne McTaggart MSP, M1.11, Scottish
Parliament, Edinburgh, EH99 1SP; tel. 0131 348
6211; or email –
[email protected].
Air Weapons and Licensing (Scotland) Bill
Closing 29/09/14
The Scottish Parliament’s Local Government and
Regeneration Committee has issued a call for
written evidence as part of its Stage 1
consideration of the Air Weapons and Licensing
(Scotland) Bill (see http://bit.ly/SP4-b49-c)
Contact Local Government and Regeneration
Committee Clerks, Room T3.40, Committee Office,
Scottish Parliament, Edinburgh, EH99 1SP; tel.
0131 348 6040; or email –
airweaponsandlicensingbill@
scottish.parliament.uk.
Scottish Independence Bill
Closing 20/10/14
The Scottish Government seeks views on its
Scottish Independence Bill, which provides a
process for Scotland to become an independent
state in March 2016 and sets out a draft interim
constitution.
The consultation paper contains: the draft Scottish
Independence Bill providing for Scotland to be an
independent State and setting out the interim
constitution which would apply from Independence
Day; detailed commentary explaining the
provisions of the Bill, and summarising the content
of the renewed Scotland Act which would sit
alongside it; an explanation of the process
following a yes vote, including the establishment
of a Constitutional Convention to prepare a
permanent written constitution; and a set of 6
broad, qualitative questions seeking views on all
aspects of the proposals contained in the paper.
The full consultation paper is available via http:/
/bit.ly/SG-SIBill,
Contact The Scottish Independence Bill Team, Area
2 West, St Andrews House, Edinburgh, EH1 3DG;
or email - ScottishIndependenceBill@
scotland.gsi.gov.uk.
Completion of the Land Register
Closing 04/11/14
Registers of Scotland (RoS) is holding a public
consultation on the completion of the Land
Register. This follows Scottish ministers’ invitation
to the Keeper of the Registers of Scotland to
complete the Land Register in 10 years, including
registering all public sector land within five years.
Over 200 stakeholder groups will be encouraged
to take part in the consultation, which may include
written submissions, face-to-face meetings and
workshops. Completion is possible for the first time
thanks to the Land Registration etc. (Scotland)
Act 2012, which comes fully into force in December
this year.
Contact Chris Kerr, Registers of Scotland, Room
6W-10, Meadowbank House, 153 London Road,
Edinburgh, EH8 7AU; 0131 659 6111 ext. 3876; or
email – [email protected].
Welfare Reform: Long-Term Conditions
Closing date not given
The Welfare Reform Committee would like to hear
from people with, or caring for those with, longterm conditions and get their thoughts about how
welfare reform is impacting on them. Further
information is available via http://bit.ly/wrc-ltc.
Contact Rebecca Macfie, Assistant Clerk, Welfare
Reform Committee, Room TG.01, Scottish
Parliament, Edinburgh, EH99 1SP; or email –
[email protected].
SCOLAG needs your support - join and donate today - www.scolag.org
2014 SCOLAG (August)
Page 171
Updates
August 2014
Legislation Update
Continuing the monthly update of relevant legislation last appearing at 2014 SCOLAG 144
Recent Acts of the Scottish
Parliament
(At 27/07/14)
•
Procurement Reform (Scotland) Act
2014, asp12
Royal Assent 17/06/14
For details see 2014 SCOLAG 144
Recent Acts of the UK
Parliament
Selected Acts of the UK Parliament affecting or
of interest to Scotland.
(At 27/07/14)
•
Data Retention and Investigatory
Powers Act 2014, chapter 27
Royal Assent 17/07/14
An Act to make provision, in consequence of
a declaration of invalidity made by the Court
of Justice of the European Union in relation
to Directive 2006/24/EC, about the retention
of certain communications data; to amend the
grounds for issuing interception warrants, or
granting or giving certain authorisations or
notices, under Part 1 of the Regulation of Investigatory Powers Act 2000; to make
provision about the extra-territorial application of that Part and about the meaning of
“telecommunications service” for the purposes of that Act; to make provision about
additional reports by the Interception of Communications Commissioner; to make
provision about a review of the operation and
regulation of investigatory powers; and for
connected purposes.
•
Finance Act 2014, chapter 26
Royal Assent 17/07/14
An Act to grant certain duties, to alter other
duties, and to amend the law relating to the
National Debt and the Public Revenue, and
to make further provision in connection with
finance.
Bills Before Westminster
Selected Bills before the UK Parliament affecting or of interest to Scotland; for a full list see
http://services.parliament.uk/bills/
(At 27/07/14)
•
Consumer Rights Bill
Government Bill introduced by Vince Cable MP
on 23/01/14
For details see 2014 SCOLAG 50
Page 172
Criminal Justice and Courts Bill
Government Bill introduced by Chris Grayling
MP on 05/02/14
For details see 2014 SCOLAG 50
•
Buildings (Recovery of Expenses)
(Scotland) Act 2014, asp 13
Royal Assent 24/07/14
An Act of the Scottish Parliament to amend the
Building (Scotland) Act 2003 to provide for expenses incurred by local authorities in
connection with notices served or work carried
out under that Act to be recovered by way of
charging order.
The full text and accompanying documents can
be accessed via http://bit.ly/SP-s4Bill39.
•
•
Deregulation Bill
Government Bill introduced by Oliver Letwin
MP on 23/01/14
For details see 2014 SCOLAG 50
•
Insurance Bill
Government Bill introduced by Baroness Anelay
on behalf of Lord Newby on 17/07/14
The subject matter of this Bill is reserved to the
United Kingdom Parliament. The Bill extends
to the whole of the United Kingdom, apart from
a consequential provision in clause 19(4), which
does not extend to Northern Ireland, and clause
19(5), which extends only to Northern Ireland.
The main provisions give effect, with some
modifications, to the recommendations set out
in a joint Report published in July 2014 by the
Law Commission and the Scottish Law Commission: Insurance Contract Law: Business
Disclosure; Warranties; Insurers’ Remedies for
Fraudulent Claims; and Late Payment (Law Com
No 353; Scot Law Com No 238).
•
Modern Slavery Bill
Government Bill introduced by Theresa May MP
on 10/06/14
For details see 2014 SCOLAG 144
•
Serious Crime Bill
Government Bill introduced by Lord Taylor of
Holbeach on 05/06/14
For details see 2014 SCOLAG 144
MSP on 11/06/14
Lead committee: Local Government and Regeneration
At Stage One
For details see 2014 SCOLAG 144
The full text and accompanying documents can
be accessed via http://bit.ly/SP-s4Bill52.
•
Courts Reform (Scotland) Bill
Government Bill introduced by Kenny
MacAskill MSP on 06/02/14
Lead Committee: Justice
At Stage Three
For details see 2014 SCOLAG 51. For the full Bill
and accompanying documents see http://bit.ly/
SPs4Bill46.
•
Criminal Justice (Scotland) Bill
Government Bill introduced by Kenny
MacAskill MSP on 20/06/13
Lead Committee: Justice
At Stage Two (completion date to be determined)
For details see 2013 SCOLAG 172. For the full
Bill and accompanying documents see http://
bit.ly/SP-s4Bill35.
•
Criminal Verdicts (Scotland) Bill
Proposed by Michael McMahon on 28/06/12
Member’s Bill introduced by Michael McMahon
MSP on 27/11/13
Lead Committee: Justice
At Stage One (completion date yet to be determined)
For details see 2014 SCOLAG 8.
For the full Bill and accompanying documents
see http://bit.ly/SP-s4Bill42.
Bills Before Holyrood
•
(At 27/07/14)
Government Bill introduced by Kenny
MacAskill MSP on 14/05/14
Lead Committee: Justice
At Stage One (completion date yet to be determined)
For details see 2014 SCOLAG 124
Member’s Bill introduced by Dennis Robertson
MSP on 17/12/13
Lead Committee: Local Government and Regeneration
At Stage Three
For details see 2014 SCOLAG 8; the full Bill and
accompanying documents can be accessed via
http://bit.ly/SP-s4Bill44.
•
•
•
Air Weapons & Licensing (Scotland) Bill
Assisted Suicide (Scotland) Bill
Member’s Bill introduced by Margo MacDonald
MSP on 13/11/13.
Lead Committee: Health & Sport
At Stage One (completion date yet to be determined)
For details see 2013 SCOLAG 266.
For the full text and accompanying documents
see http://bit.ly/SP-s4Bill40.
•
City of Edinburgh Council (Portobello
Park) Bill
Private Bill introduced by the City of Edinburgh
Council on 25/04/13
Lead Committee: City of Edinburgh Council
(Portobello Park) Bill Committee
Awaits Royal Assent (Final Stage completed on
26/06/2014)
For details see 2013 SCOLAG 100.
•
Community Empowerment (Scotland)
Bill
Government Bill introduced by John Swinney
2014 SCOLAG (August)
Disabled Persons’ Parking Badges
(Scotland) Bill
Food (Scotland) Bill
Government Bill introduced by Alex Neil MSP
on 13/03/14
Lead Committee: Health and Sport
At Stage One (to be completed 06/10/14)
For details see 2014 SCOLAG 78
•
Historic Environment Scotland Bill
Government Bill introduced by Fiona Hyslop
MSP on 03/03/14
Lead Committee: to be determined
At Stage Two
For details see 2014 SCOLAG 78
•
Housing (Scotland) Bill
Government Bill introduced by Nicola Sturgeon
MSP on 21/11/13
Lead Committee: Infrastructure and Capital Investment
Awaits Royal Assent (passed 25/06/14)
For details see 2013 SCOLAG 267. The full text
and accompanying documents can be accessed
via http://bit.ly/SP-s4Bill41.
Legislation Update - August 2014
•
Legal Writings (Counterparts and
Delivery) (Scotland) Bill
Government Bill introduced by John Swinney
MSP on 14/05/14
Lead Committee: Delegated Powers & Law Reform
At Stage One (to be completed 28/11/14)
For details see 2014 SCOLAG 125.
•
Mental Health (Scotland) Bill
Government Bill introduced by Alex Neil MSP
on 19/06/14
Lead committee: Health & Sport
At Stage One
For details see 2014 SCOLAG 145.
The Bill and accompanying documents can be
accessed via http://bit.ly/SP-s4Bill53.
•
Revenue Scotland and Tax Powers Bill
Government Bill introduced by John Swinney
MSP on 12/12/13
Lead Committee: Finance
At Stage Three
For details see 2014 SCOLAG 9.The full text and
accompanying documents can be accessed via
http://bit.ly/SP-s4Bill43.
•
Welfare Funds (Scotland) Bill
Government Bill introduced by Nicola Sturgeon
MSP on 10/06/14
Lead Committee: Welfare Reform
At Stage One
For details see 2014 SCOLAG 145. The Bill and
accompanying documents can be accessed via
http://bit.ly/SP-s4Bill51.
Recent Proposals for
Members Bills
(At 27/07/14)
•
Organ and Tissue Donation (Scotland)
Bill
Proposed by Anne McTaggart on 26/06/14
Open to consultation until 25/10/14 see p.171.
Proposal for a Bill to amend the law on human
transplantation, including by authorising (in certain circumstances) the posthumous removal of
organs and tissue from an adult who had not
given express consent.
•
Pentland Hills Regional Park (Scotland)
Bill
vide a more straight forward enforcement procedure that does not require further court
expenses
ing regulations and in relation to the common
law offence of bigamy.
Scottish Statutory
Instruments
In force 26/06/14
This provides for the fees payable in relation to
registering, recording or entering in registers
under the management and control of the Keeper
of the Registers of Scotland, access to those registers and information made available by the
Keeper. It replaces the instruments providing for
fees payable to the Keeper and sets fees for new
products required by the Land Registration etc.
(Scotland) Act 2012.
For a full list of statutory instruments see http://
www.legislation.gov.uk/ssi
(At 27/07/14)
•
In force 01/08/14
Paragraph 4 of this Act of Sederunt amends
Chapter 5 (maintenance orders) of the Act of
Sederunt (Child Care and Maintenance Rules)
1997. It adds a new Part to that Chapter to provide for the recognition and enforcement of
maintenance obligations to which the Convention on the International Recovery of Child
Support and other forms of Family Maintenance
done at The Hague on 23rd November 2007 applies. New Forms 73D, 73E and 73F are inserted
in Schedule 1 to the Child Care and Maintenance Rules to provide for intimation and notice
under the new Part.
In addition, paragraphs 2, 3 and 5 make minor
corrections and clarifications to other rules of
court. Paragraph 2 corrects a minor cross-referencing error in rule 41.52 of the Rules of the
Court of Session 1994. Paragraph 3 inserts a
missing cross-reference in rule 28.8(2)(b) of the
Ordinary Cause Rules. Paragraph 5(2) corrects
a minor cross-referencing error in rule 3.49 of
the Child Care and Maintenance Rules, and
paragraph 5(3) clarifies the information to be
inserted in Form 65A of that Act of Sederunt.
•
(At 27/07/14)
For the Scottish Parliament petitions pages see
http://bit.ly/SP-petition
For petitions open to be signed see http://bit.ly/
openpetitions
•
Parental Contact
PE01528 – lodged 04/07/14
Petition by John Ronald calling on the Scottish
Parliament to urge the Scottish Government to
amend child contact laws to provide that the
starting point for the judge should be near to
50/50 contact for both parents if parents are fit
and proper to parent.
•
Parental Contact Enforcement
PE01529 – closing 04/07/14
Petition by John Ronald calling on the Scottish
Parliament to urge the Scottish Government to
strengthen court orders for child access and pro-
The Land Register of Scotland (Rate of
Interest on Compensation) Regulations
2014 (2014 No. 194)
In force 08/12/14
These make provision as to the rate of interest to
be applied to payments of compensation made
by the Keeper of the Registers of Scotland under
the Land Registration etc. (Scotland) Act 2012.
•
Proposed by Christine Grahame on 26/02/14
Consultation closed 23/05/14
For details see 2014 SCOLAG 101.
Recent Petitions
Act of Sederunt (Rules of the Court of
Session and Sheriff Court Rules
Amendment) (Miscellaneous) 2014
(2014 No. 201)
The Land Registration etc. (Scotland)
Act 2012 (Incidental, Consequential
and Transitional) Order 2014 (2014 No.
190)
In force 08/12/14
This Order makes provision for the purposes of
the Land Registration etc. (Scotland) Act 2012.
•
The Marriage and Civil Partnership
(Scotland) Act 2014 (Commencement
No. 2 and Saving Provisions) Order
2014 (2014 No. 212 (C. 18))
In force 01/09/14
This brings into force sections 4(8) to (10), 9, 10,
11(5) and (6), 17, 18(2)(a), 21, 25, 28, 30 and 33
of the Marriage &Civil Partnership (Scotland)
Act 2014.
It also brings into force sections 6, 12(2)(a) and
(b), 13(2)(e), 14(2), 24(13) and (15) and 29 of and
paragraph 1(4) of schedule 1 and paragraphs 7,
9(2)(b), 15 and 17 of schedule 2 to the 2014 Act
only for purposes set out in column 3 of the
Schedule to the Order.
The appointed day in art.2 for all of these provisions to come into force is 1st September 2014.
Article 3 makes saving provisions about exist-
•
•
The Registers of Scotland (Fees) Order
2014 (2014 No. 188)
The Registers of Scotland (Information
and Access) Order 2014 (2014 No. 189)
In force 08/12/14
This Order makes provision in relation to information to be made available by the Keeper of
the Registers of Scotland and access to the registers under the management and control of the
Keeper.
Article 2 provides for how plain copies of information can be applied for and are issued by the
Keeper. A plain copy is a simple copy and does
not have the evidential status of an extract or
certified copy (see sections 104 and 105 of the
Land Registration etc. (Scotland) Act 2012), or
an office copy (see section 11(6) of the Crofting
Reform (Scotland) Act 2010 (asp 14)).
Article 3 provides that an application for an extract or plain copy of the cadastral map may only
be made in respect of one cadastral unit number
or title number. Article 4 provides for how requests for inspection of a register under the
management and control of the Keeper may be
made.
•
The Victims and Witnesses (Scotland)
Act 2014 (Commencement No. 2 and
Transitional Provision) Order 2014
(2014 No. 210 (C. 17))
In force 13/08/14
This brings into force the following sections of
the Victims and Witnesses (Scotland) Act 2014:
sections 2, 6, 8, 23 (except subsections (7) and
(14)), 26, 27, 28 and 29 (article 2(1)). Some of the
provisions are brought partially into force for
restricted purposes only (article 2(2)).
The Order makes transitional provision in relation to sections 23, 27, 28 and 29 of the 2014
Act (article 3). Sections 23, 27 and 28 modify
the rights conferred by sections 16 (victim’s right
to receive information concerning release etc.
of offender) and 17 (release on licence: right of
victim to receive information and make representations) of the Criminal Justice (Scotland) Act
2003. Section 29 adds to those rights, by inserting into the 2003 Act new section 17A
(temporary release: victim’s right to make representations about conditions). Article 3 of this
Order sets out how these amendments affect the
rights of persons who, immediately before 13th
August 2014, are entitled to receive information
under section 16 of the 2003 Act, or to be afforded an opportunity to make representations
under section 17 of the 2003 Act.
The Bill for the 2014 Act received Royal Assent
on 17th January 2014. The following sections of
the 2014 Act came into force on the following
day: sections 30 (in part), 31 (in part), 32, 33, 34
and 35.
2014 SCOLAG (August)
Page 173
Updates
August 2014
Family Law Update
Carolynn Gray* continues our digest, last appearing at 2014 SCOLAG 102
T
here are three cases which I want to focus on in this up
date. The first concerns a petition by a mother for the return of her child to Norway, the second case concerns an appeal
by a mother against a decision of a sheriff that the contact between her child and its father be reinstated and the final case is
an appeal by the mother of a child against a determination of a
pre-hearing panel that the child’s father is a ‘relevant person’
under the provisions of the Children’s Hearing (Scotland) Act
2011.
H, Petitioner [2014] CSOH 79
This case concerned an order for the return of a 13-year-old
child (K) under the Child Abduction and Custody Act 1985. K
lived in Scotland with her mother, father and older brother.
Both of K’s parents are Scottish. The parents separated in November 2007 and K lived with her mother and older brother. In
2009 the older brother went to live with his father and since
then there had been little contact between the older brother
and the mother. The father continued to have substantial residential contact with K and contact had been arranged
informally. The parents divorced in 2010 and both parents then
remarried other people. The mother, her husband and K moved
to Norway for K’s step-father’s work in March 2012. In October
2013 K returned to Scotland to visit her father and she did not
return to Norway as arranged. K does not wish to return to
Norway and has lived with her father and her brother since.
The mother sought to have the child returned to Norway. At
the time of the case the mother had not seen K in almost 6
months. A consultant psychologist, professor Furnell, was appointed and asked to prepare a report. Professor Furnell was
asked to report on the following:
i) Does the child object to being returned to Norway?
ii) Is the child of an age and maturity which is appropriate
to take account of her view?
iii) What are the child’s reasons for any objection to return
to Norway?
iv) To what extent are those views rooted in reality?
v) To what extent, if any, have those views been shaped by
undue parental pressure either direct or indirect?
Both parents held parental responsibilities and rights in
relation to the child. The petitioner, the mother, had, immediately prior to K’s visit to Scotland, been exercising rights of
custody in Norway in terms of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.
The father consented to K moving to Norway with the mother.
It was agreed that K remaining in Scotland amounted to wrongful retention under Article 3 of the Hague Convention, it was
also agreed that K had reached sufficient age and maturity
whereby it was appropriate to take her views on return into
consideration. The issue in dispute was whether or not the court
should exercise its discretion and refuse to order the child’s
return to Norway. Article 12 of the Hague Convention provides
that where a period of less than one year has passed since the
date of the wrongful removal or retention then the court shall
order the child’s return. However Article 13 provides that the
court can refuse to order return if “it finds that the child objects
to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”
Professor Furnell’s report found that K objected strongly to
Page 174
2014 SCOLAG (August)
being returned to Norway, that she was of sufficient age and
maturity for her views to be considered and that she was, in
fact, more mature and possessed more insight than could be
expected of someone of her age. Her reasons for objecting to
returning to Norway were that moving there had meant that
she had been removed from a number of relationships such as
those with her family, peers and friends and that she had lost
the opportunity to be involved in a number of activities with
friends, family and the wider community. She claimed that she
wanted to maintain the close relationship she had with her older
brother, that she had moved school three times in three years
and when she returned to Scotland she was facing another
change of school, this time to Angola or should that not transpire, a move to London. She argued that she was settled in
secondary school in Scotland and that she wanted to maintain
consistency in her education. She alleged bullying at school in
Norway and that this would continue should she be ordered to
return there. Finally she claimed that she was settled in her
father’s home and that her relationship with her mother was
more difficult. Professor Furnell was of the opinion that K’s
views were based in reality and that there was no indication
that K had experienced influence or pressure from her parents
in relation to her views. It was accepted by the father’s solicitor
that the burden was on them to show why the court should
refuse to order K’s return to Norway and it was argued that
based on K’s views expressed to professor Furnell she was settled here, she was thriving at school and in relationships with
extended family and this would be jeopardised by ordering
her return to Norway. The mother’s solicitor argued that the
views expressed by K were insufficient to “justify exception
from the general policy and principles of the Convention.” The
court noted that K objected to returning to Norway, that she
was of sufficient age and maturity for her views to be taken
into account and therefore the requirements under Article 13
had been met. This meant that the court had discretion as to
whether to order her return or not. The court accepted the report of the consultant psychologist that K’s views were her own
and that she was able to make this decision to refuse return to
Norway for the reasons she gave. The court considered how
much weight to give to K’s views and acknowledged that she
was almost 14 years old, that she presented as someone with
more maturity and insight than someone of her age. The court
stated that:
“K’s views as to where she wishes to live are so strong,
clear and unambiguous that they leave no room for any
real doubt that she does indeed object to being returned
to Norway even though the court there would be able
to adjudicate upon the question of custody” (at para.
13)
The court determined that it was therefore “appropriate to
give K’s views very considerable weight indeed.” And that
“[o]rdering her return to Norway, particularly against her will,
would be liable to cause her considerable distress and disruption.” The court refused the order for return of K to Norway.
A v. S, Glasgow Sheriff Court 10th April 2014
This case is an appeal against a sheriff’s decision that it was
in the child’s best interests that contact between father and child
be reinstated; an order for contact had not been made by the
initial court. The parents separated in July 2010 and from then
Family Law Update - August 2014
the father had no contact with the child. The details of contact
between father and child was to be determined by a child welfare hearing but at the time of this appeal the hearing had not
taken place. The appeal was based on three points:
i) that the sheriff had based his decision on a presumption in favour of contact by virtue of the link between
parent and child;
ii) that the sheriff has failed to carry out the appropriate
balancing act between contact and best interests which
he himself identified as necessary in these cases; and
iii) that the sheriff had failed to consider s.11(7A) and 11(7E)
of the Children (Scotland) Act 1995.
Therefore it was sought that the court substitute the sheriff’s finding that contact be reinstated with a finding that contact
would not be in the child’s best interests.
In terms of the relationship between the parents it was submitted that there was an atmosphere of hostility and conflict
and that this would continue should the father have contact
with the child and that this would lead to potential psychological and emotional harm for the child being exposed to such
an atmosphere. There were concerns in relation to the ability
of the father to parent the child, for example there were concerns in relation to his commitment, his behaviour and use of
drugs and alcohol. The sheriff did not justify why contact should
be reinstated given these negative factors. The father argued
that the sheriff’s decision should be upheld and that the sheriff
had adequately set out why contact should be reinstated. It
was observed that the sheriff determined that the child should
be reintroduced to his father and the father argued that the
sheriff had taken a “common sense, pragmatic approach by
holding that contact, in principle, should be reinstated but by,
thereafter, for instance, ordaining both parties to attend
Parenting Apart Workshops.” In relation to the father’s lifestyle and mental health concerns it was argued that these had
been overcome to the satisfaction of the sheriff and therefore
ought not to impact on contact with the child.
The sheriff principal observed that the basis for the appeal
was that the sheriff in reaching his decision had failed to give
appropriate consideration to the best interests of the child and
that he agreed with this assessment. It was noted that the sheriff’s judgment was:
“fundamentally silent when it comes to why it is that
the reinstatement of contact with the pursuer would
operate in the best interests of the child […] On a reading of the sheriff’s decision, one is unable to identify,
firstly, any appraisal of factual material dealing with the
best interests of J and, secondly, any cogent articulation
as to why on the facts found established by the court,
the sheriff held that contact should be attempted” (at
para. 20).
The sheriff principal noted that the factors on which the
sheriff based his decision related very little to the best interests
of the child. It was agreed that the sheriff failed to carry out the
proper balancing exercise required and that:
“in a case such as the present where, an objective appraisal of the factual matrix does not present a
particularly favourable impression, it was, I believe,
incumbent upon the sheriff to articulate why it was that
when all relevant facts were weighed in the balance, the
reinstatement of contact outweighed adherence to the
status quo” (at 22).
The sheriff principal noted that while the sheriff had acknowledged that the best interests of the child was the
paramount consideration “[h]e does not appear to have followed through with that approach.” Based on this the sheriff
principal deemed it appropriate to interfere with the sheriff’s
decision and reversed the sheriff’s finding in fact and law and
recalled the interlocutor which was based on those findings.
H v. Scottish Children’s Reporter, Haddington Sheriff
Court, 25th April 2014
This case was an appeal under s.160 of the Children’s Hearing (Scotland) Act 2011 (the 2011 Act) by the child’s mother.
The appeal was against a decision of a pre-hearing panel which
determined that the child’s father was a relevant person under
s.81(3) of the 2011 Act. Section 81(3) provides that:
“[t]he pre-hearing panel must deem the individual to
be a relevant person if it considers that the individual
has (or recently had) a significant involvement in the
upbringing of the child.”
Section 160 provides that if the sheriff is satisfied that the
determination is justified then it must be upheld, if it is not
justified then the sheriff must quash it; there is no room in s.160
for discretion and the issue of significant involvement is one of
fact. The pre-hearing panel determined that the father was a
relevant person because it had been acknowledged by both
himself and the child’s mother that he was the father and they
determined that he had recently had a significant role in the
child’s upbringing. The mother argued that the father’s involvement amounted to no more than bathing the child and changing
the child’s nappies. During the parents’ relationship the father
had been bailed to stay away from the mother and child and
had allegedly threatened to slit the throat of both mother and
child. The child was 8 months old at the time of the case and
there had been no involvement of the father for the last 5
months. It was on this basis that the mother sought to challenge the pre-hearing panel’s determination that the father had
had significant involvement in the child’s life. The father sought
to argue that the panel’s decision was correct as, during the
period in which he had contact with the child he had met her
basic needs and would have remained in the child’s life had it
not been for state intervention which prevented this. The father denied all allegations against him and sought to argue that
he had been a ‘hands-on-father’. Sheriff Peter Braid on examining the decision of the panel observed that the father had
been involved with his child from the child’s birth, that he had
met her basic needs and provided care for the child. The fathers involvement continued until the state prevented him from
being involved in the care of his child and therefore the sheriff
determined that the pre-hearing panel had reached the correct
conclusion in determining that the father was a relevant person under s.81(3) of the 2011 Act.
* Carolynn Gray is a lecturer in law at the University of the
West of Scotland
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2014 SCOLAG (August)
Page 175
Updates
August 2014
Information Law Update
Alan S Reid* continues our quarterly digest, last appearing at 2014 SCOLAG 132
T
his month’s update is dominated by EU law judicial devel
opments, namely the infamous ‘right to be forgotten ruling’ and the judgment striking down the Data Retention
Directive.
The Right to be Forgotten
In case C-131/12 Google Espana and Google Inc v. Agencia
Española de Protección de Datos (AEPD) and Mario Costeja
González,1 Mr González, a Spanish lawyer, got into financial
difficulty and defaulted on a number of loans. Subsequently,
he was declared bankrupt in 1998 and his financial credit rating was seriously affected. The fact of his bankruptcy was a
matter of public record and as such, anyone could access the
Spanish public bankruptcy database. The rise, and indeed dominance, of Google in the internet search sector was a particular
concern for Mr Costeja González because Google’s search algorithm would cause information about Mr Costeja González’s
to appear high on the first page of search results appearing on
Google when an internet user typed in his name. Google’s list
of results would prominently display two articles from a
Catalonian regional newspaper. Thus, even after the effusion
of a significant period of time, in this case twelve years, Mr
Costeja González’s history came back to haunt him via Google,
from 2010 onwards. Even after discharging his bankruptcy years
earlier, Mr Costeja González found that Google provided a constant reminder of his past financial faux pas.
Mr Costeja González thus contacted the Catalonian newspaper concerned asking for it to remove the information about
him from their website. The newspaper refused to do so, citing
journalistic freedom and the truth of the information to justify
the online availability of the articles. Mr Costeja González also
complained to Google Espana and Google Inc. requesting that
the internet giant remove or conceal his personal data that was
linked to the relevant Catalonian newspaper articles highlighting his bankruptcy. Google Espana refused as did Google Inc.,
stating that they were under no obligation to take down such
information, that in any event it would be impossible to do so
and that to do so would be a violation of the company’s right to
free speech. Google Inc. also invoked the notion of territoriality and stated that Spanish law had no jurisdictional application
to its operations in the USA.
Having got nowhere by speaking to the organisations directly,
Mr Costeja González then complained to the Spanish Data Protection Authority (AEPD). The AEPD agreed with the Catalonian
newspaper and defended its right to report the truth and maintain an online database of its earlier editions. As regards Google
Espana and Google Inc. the response by the AEPD was equally
forthright but diametrically opposed. The AEPD held that Google
was required to conceal and delete the personal data of Mr Costeja
González. Google was unrepentant and thus challenged the decision of the Spanish Data Protection Agency in the National
Court (Audiencia Nacional) in Madrid.
The Spanish justices referred a preliminary ruling to the
Court of Justice of the EU under article 267 of the Functioning
Treaty of the EU. The Spanish judiciary wanted to know the
answer to a number of EU law questions relating to: the jurisdictional nexus of EU law as it applied to Google Inc.; whether
Google processes data when it produces its search results and
whether EU law permitted a ‘right to be forgotten’ that is, could
an individual request that certain data about them be removed
Page 176
2014 SCOLAG (August)
from search engine results, even where the primary source of
the material is entitled to publicise the information.
The European Court of Justice held that EU law did respect
such a right, on the basis of existing primary and secondary EU
law. Under article 16 of the Functioning Treaty of the EU there is
a general right to data protection, whilst article 7 of the Charter
of Fundamental Rights of the EU provides for the right to privacy and article 8 provides for personal data protection and the
EU’s general data protection directive, Directive 95/46 provides
for a number of more specific data protection safeguards. As regards the Data Protection Directive, the Court held that the
existing right of rectification and erasure could encapsulate the
essence of a right to be forgotten, notwithstanding the fact that
the Commission has drawn up specific plans for a Data Protection Regulation with a more detailed right to be forgotten.
The case has generated a tremendous amount of media interest. Privacy advocates have welcomed the judgment, whilst media
professionals have criticised the ruling for imposing intolerable
burdens upon the media and for suppressing journalistic freedom.
The judgment came as somewhat of a surprise to some, particularly given the tenor of the Advocate General’s earlier
Opinion.2 Advocate General Jääskinen had held that the Court
of Justice should not hold Google responsible for deleting and
rectifying personal data that was under the control of another
organisation. The Advocate General considered that Google could
not be a controller of data created and held by another.
Thus, commentators were expecting a similarly robust defence of Google’s intermediary status by the Court of Justice. The
Court of Justice decided, conversely, to focus on Google’s preeminent status in the search engine industry and its ability to
deal in, process and control data. The Court of Justice held that
Google was indeed a controller of data and thus able to physically deal with Mr Costeja González’s request for his personal
details to be de-linked with the articles set out on the Catalonian
newspaper online archive. The Court held that the right to block,
erase and correct data as set out in the Data Protection Directive
encompasses a general right to be forgotten online.
The judgment is not as surprising or as revolutionary as it
might at first appear. The Data Protection Directive is almost 20
years old and has always provided for a right of data subjects to
ask organisations which hold, process or control data about them
to rectify incorrect information or to delete obsolete or out of
date information. As such, the judgment is simply a move forward in the evolution of EU data protection law. The judgment
could possibly be criticised as another example of European judicial activism in Luxembourg. On the other hand, the judges
could be argued to be simply giving effect to the current intention of the EU legislature. The proposed Data Protection
Regulation will provide for a specific ‘right to be forgotten’ that
builds on the current rectification, blocking and erasing provisions as set out in the Data Protection Directive. Thus, the EU
judges are simply responding to the collective wish of the EU
legislature to provide for a more holistic right to be forgotten
that pre-exists in EU jurisprudence.
Detractors of the judgment point to the chilling effect the judgment may have on journalistic freedom to report facts and the
general problem of limiting free speech. However, the judgment
does not significantly interfere with such high ideals and indeed
Information Law Update - August 2014
the judgment may simply be resetting the balance between privacy and free speech that existed prior to the era of internet, social
media and search engines. Before the internet, privacy was rather
effectively protected through the effort needed to be expended
to uncover facts and information. Journalists and interested individuals seeking information would need to interview people
connected to the event, visit the locations concerned, search microfiche files of old newspapers and search voluminous library
and local and national government archives. Thus, past events
stayed in the past until committed individuals pieced together
information from multiple sources. In the era of Web 2.0, everyone can be a detective or journalist as long as they have access to
the internet. The judgment is actually addressing the immense
power and dominance of Google in the internet search engine
sector. The EU judges are attempting to make it more difficult
for personal information to seep out of the ether and thereby
protect personal data. The judges have asked that Google strip
out irrelevant or old information that appears high on the search
return headings merely because the internet user typed in a person’s name. The idea is that the information will only be made
available when the internet user types in connected phrases. Thus,
in Mr Costeja González’s case, the newspaper articles concerning his bankruptcy situation should now only appear high on
Google’s search returns when the user has entered the search
terms ‘Mr Costeja González’ and ‘bankruptcy’ for example. In
the future, a basic search for ‘Mr Costeja González’ should not
highlight the fact of his bankruptcy, although this information
may well appear way down the ranking of relevant web pages.
Thus, the judgment is not trying to rewrite history or prevent the
truth from getting out but is rather trying to protect privacy by
making it rather time and labour intensive to search about individuals – precisely one of the best ways of protecting privacy.
Google has responded to the judgment by adopting a robust
approach to requests and has simply adopted a blanket ban approach such that when a person contacts Google asking for certain
websites to not appear high on the search results list, Google has
removed them. Google’s approach to implementation is of more
concern than the actual judgment of the EU justices. Google’s
over-zealous stripping out of information from its search results
is akin to censorship and Google is playing a highly dangerous
political game, attempting to garner widespread support for its
objections to having to expend significant time and money on
dealing with EU citizen requests for information to be taken
down.
The Data Retention Directive
A very old form of privacy invasion was that of eavesdropping. It was highly dangerous, awkward and difficult to hang
from the eaves of a roof and listen to a private conversation between the inhabitants of the building. The inherent difficulty and
dangerousness was sufficient in deterring everyone but the most
determined and foolhardy. As technology advanced communications could be listened into remotely by tapping into the wires
conveying the communication and/or data between people located at a distance from each other. Governments across the world
consider it necessary to intercept communications for the purposes of preventing crime. The EU did so by virtue of the Data
Retention Directive 2006/24.
The Court of Justice of the EU had to deal with the legal status of the Data Retention Directive in the case of Digital Rights
Ireland.3 The Data Retention Directive, Directive 2006/24, was
promulgated to harmonise the laws of the member states of the
EU as regards the processing and retention of communications
data for the purposes of investigating, detecting and prosecuting serious crime. The Directive required that electronic
communications service and public communications network
providers retain location and traffic data. Member states were
given a limited discretion as to the time limits for data retention.
The minimum period for which data must be retained was six
months and the maximum period was two years from the date
of communication. The UK implemented the law by virtue of
the Data Retention (EC Regulations) 2009 as amended.
Digital Rights Ireland, a human rights organisation, bought
a mobile phone in 2006 in order to bring judicial review proceedings against the Irish implementing laws. The Irish High Court
requested a preliminary ruling from the Luxembourg Court on
the compatibility of the Directive with EU primary law. The Court
of Justice finally delivered judgment in April 2014. The Court of
Justice held that the Directive was incompatible with articles 7
and 8 of the Charter of Fundamental Right so the EU. In particular, the justices were highly critical of the blanket approach taken
by the directive. Individuals using mobile phones across Europe
could never be sure that their phone was not under surveillance
by law enforcement agencies of the EU member states. In the
view of the court, this was an intolerable restriction on the EU
citizen’s right to privacy and personal data, which was a disproportionate response to the threat posed to European society by
terrorism and organised crime.
The consequences of the judgment are only now being felt in
the United Kingdom. The government has decided that the relevant implementing UK law would need to be repealed and
replaced in light of the judgment and as such, the government
sought cross party support for the creation of a new emergency
law to replace the 2009 regulations. The Data Retention and Investigatory Powers Act (DRIP) was passed on the 17th of July
2014. This new law largely replicates the earlier law but with
extra safeguards. These safeguards include 6-monthly reviews
of the operation of the law by the Interception of Communications Commissioner, a list of specified purposes for which the
data may be disclosed and an obligation that the law expires on
the 31st of December 2016. The need to rush to pass emergency
primary law was not fully made out and is highly questionable.
It is true that the underlying EU law had been declared unlawful
by the Court of Justice, however, such a finding does not automatically invalidate the implementing domestic law. If the
domestic law contained extra safeguards that would satisfy the
proportionality requirement as set out by the Court of Justice,
then the domestic law could have survived, notwithstanding the
invalidity of the parent EU directive. An in-depth assessment of
the domestic law could then have been undertaken over a period of time and would have avoided the general perception that
the law has been rushed onto the statute books for political expediency. The swift promulgation of the emergency law may need
to be seen in the context of the fact that there is going to be a
general election in the next year. The increasingly Eurosceptic
arm of the coalition government may well be looking to be seen
as strong against the EU and as willing to act quickly to remedy
perceived problems with the EU legal space caused by the EU
institutions. The ink has hardly had time to DRIP and dry on the
emergency law and already there is talk of Liberty seeking a judicial review. If the judicial review is granted and succeeds, it
will once again prove the maxim that rushed laws make bad
laws.
* Alan S Reid is a Senior Lecturer in Law at Sheffield Hallam
University
1.
ECLI:EU:C:2014:317.
2.
ECLI:EU:C:2013:424.
3.
Case C-293/12 Digital Rights Ireland Ltd v. Minister for Communications,
Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney
General.
2014 SCOLAG (August)
Page 177
Reviews
Book Reviews
Confiscation and Civil Recovery: A Guide to Parts
3 and 5 of the Proceeds of Crime Act 2002
Heather-Mairi Carmichael
£105, W Green, 2013
At first glance, the Proceeds of Crime Act 2002 (POCA) is
intimidating, appearing lengthy and complicated. Unfortunately, cases such as R v Waya (decided in the Supreme Court
in 2012) do nothing to help this image. Following a conviction
for mortgage fraud, proceedings were raised against Mr Waya
to the proceeds of this crime. The High Court, Court of Appeal
and Supreme Court applied POCA, with each court reaching a
different decision on the amount recoverable, ranging from
£1.53 million to an eventual £392,400 in the Supreme Court.
At first glance, this new book on Parts 3 and 5 of POCA (the
parts which apply in Scotland) is equally intimidating: it runs
to more than six hundred pages divided into twenty-two chapters with, for those unfamiliar with the Act, some scary looking
headings such as “The third and fourth confiscation questions:
determining the available amount and recoverable amount”
(this sounds complicated, will I need to do some maths?) and
“reconsideration of aspects of confiscation orders under sections 104 to 109” (how many of the previous one hundred and
three sections will I need to know about to understand this
chapter?).
Happily, for this book, looks can be deceiving. A second,
slightly longer glance, shows that each chapter is short and
focused on a specific issue or concept. The book is divided into
two main parts: chapters 1 to 11 on confiscation orders (Part 3
of POCA) and chapters 12 to 21 on civil recovery orders (Part 5
of POCA). The final chapter of the book deals with the discrete
but related topic of “exploitation proceeds orders” under the
Coroners and Justice Act 2009. These orders target the proceeds
made by criminals from memoirs.
Published as part of Green’s Practice Library, the main audience for this book is practitioners working with the legislation.
However, the book remains accessible to those looking for an
introduction to this area. Chapters 1 and 12 offer, respectively,
a brief overview of confiscation orders and civil recovery orders. Living up to the promise to be brief (both are under five
pages), these chapters successfully introduce the general background and key concepts in a clear and easy to understand
manner. Each provides a solid foundation for the chapters
which follow.
Taking chapter 1 as an example, it gives an informative description of confiscation orders, highlighting the key distinction
between “criminal lifestyle” and “criminal conduct” cases and
introducing the key concepts of “realisable amount” and “available amount”. The concepts apply in both types of cases and
inform the amount for which a confiscation order should be
made. The chapter concludes with the four stage decision making process the court should follow when making a confiscation
order. These four stages give the structure for the next three
chapters (chapter 2 to 4).
While chapters 2 to 4 deal with the granting of a confiscation order, the remaining chapters (5 to 12) deal with ancillary
and subsequent matters. Chapters 5 to 7 consider procedural
aspects, human rights considerations and the specialities of
cases where the accused is unlawfully at large. Chapter 8 looks
at enforcement and satisfaction of orders and chapter 9 considers the circumstances when an order may be reconsidered by
Page 178
2014 SCOLAG (August)
the court. The final chapters in this part (10 and 11) discuss the
tools available to prosecutors to give confiscation orders bite:
property preservation orders and investigatory powers.
The second part of the book is about civil recovery orders
under Part 5 of POCA, “one of the main innovations” of the
Act. The innovation is “a general non-conviction based regime
for the civil recovery of proceeds of crime.” The introduction
to civil recovery orders, in chapter 12, helpfully sets out the
background to the introduction of a non-conviction based recovery regime and explains the policy on when a civil recovery
order will be sought. The policy debate is continued in chapter
13, which considers the human rights consequences, and in
chapter 14 on the relationship with criminal proceedings. Chapters 15 to 21 deal with the mechanics of obtaining a civil recovery
order. Chapter 15 is called “Civil Recovery Concepts” and
serves as a useful overview and explanation of the terminology used in the Act and the two separate regimes for civil
recovery. The first regime, in the Court of Session, for recovery
of assets (chapters 16 to 18) and the second, in the sheriff court,
for recovery of cash (chapter 21). The final two chapters in this
part, chapters 19 and 20, cover protective measures and investigatory orders.
The book sets out to be a guide to Parts 3 and 5 of the Proceeds of Crime Act 2002 and, in this, it succeeds. But like the
good tour guide, there is something for everyone: a high level
introduction for the novice followed by more detailed guidance for the busy practitioner.
Sarah Skea, University of Dundee
Drafting Trusts and Will Trusts in Scotland: A
Modern Approach
James Kessler QC TEP and William Grant TEP
£80.00, W Green, 2013
Many readers will be familiar with Kessler’s Drafting Trusts
and Will Trusts: A Modern Approach. The English publication is
now in its 11th edition. Now Scotland is the tenth jurisdiction to
receive its own version, co-written by William Grant.
The Scottish version of this text is hugely welcome. For a
long time we have been envious of trust lawyers south of the
border who could rely on Kessler’s precedents, all written in
plain English and fully explained in his text. Of course, many
of us are likely to have taken clauses or sections from Kessler
and translated (or “kilted”) them for use in a Scottish trust.
That required extreme caution, and knowledge of the fundamental conceptual differences between trusts in Scots and
English law. Although we had practical styles and guidance
for wills, e.g. Drafting Wills in Scotland by Barr, Biggar, Dalgleish
and Stevens, until now there was no modern text offering practical guidance on the complexities of Scots trust law and trust
styles, covering lifetime trusts as well as will trusts. We should
be grateful to William Grant for taking on this challenge. He
has been successful in writing a comprehensive and very readable text.
The book is easily navigable for the busy practitioner, with
a detailed table of contents. The format follows the English
edition of Kessler. The writers strongly advocate the use of plain
English and clear terminology when drafting. Trusts can seem
a rather dusty and old-fashioned area of the law, particularly
when you look at many trust deeds. Chapter 3 provides some
Book Reviews
excellent suggestions for cutting out superfluous and archaic
legalese and cross-referencing.
Trust drafting requires much more than filling in the blanks
in the styles. It is essential that the drafter is aware of the tax
law, property and family law implications of what they are
doing. The book succeeds in explaining in detail the various
options for each clause and for each type of trust. There are
extensive footnotes to provide background and further guidance on tricky areas.
The styles are uncluttered in a separate section, and are
available on the accompanying CD ROM. There are a range of
styles included, running to over 100 pages of text. There are
lifetime interest in possession trust, lifetime discretionary trust
and charitable trust styles. It is good to see a style Pension Death
Benefit Trust and guidance included, as clients are becoming
more aware and interested in pension planning opportunities
and PDBTs seem to be gaining in popularity. There are several
variations of nil rate band discretionary trusts and other commonly used will trusts. The emphasis on will trusts is perhaps
a little unbalanced; Scottish will styles are already widely available and the more pressing gap has been in relation to lifetime
trust styles.
There are a few less common types of trust which could
usefully be added in future editions, particularly lifetime trusts.
Although bare trust provisions are included within the text, it
may be beneficial to include at least one form of bare trust in
the styles section for ease of use. There should also be a style
trust for a disabled person (and perhaps even some variations).
The complicated tax treatment and precise drafting requirements regarding such trusts are covered in depth within the
text, so it is perhaps surprising that a style s.89 trust has been
omitted.
This long-awaited book provides a comprehensive and
highly practical guide to Scottish trust law and drafting. It is
an essential purchase for anyone in Scotland advising on wills
and trusts.
Yvonne Evans TEP, University of Dundee
The Law Relating to Parent and Child in Scotland
(3rd ed)
Kenneth McK Norrie
£155.00, W Green & SULI, 2013
In the preface to this long-awaited new edition of Parent &
Child, Kenneth Norrie highlights the constitutional and social
changes that have taken place in Scotland since publication of
the 2nd edition in 1999. Although the Scottish Parliament had
just been established and the Human Rights Act 1998 had been
passed, the impact of these significant changes on Scottish family law could only be guessed at. As Norrie notes, these
constitutional changes “occurred at the same time as profound
social changes in the very understanding of family life, as manifested most obviously by the Civil Partnership Act 2004, the
Family Law (Sc) Act 2006 and the Human Fertilisation and
Embryology Act 2008” to which must now be added significant change in the “public law” aspects of family law such as
the Adoption and Children (Sc) Act 2007, the Children’s Hear-
ings (Sc) Act 2011 and the Looked After Children (Sc) Regs 2009.
It may be noted that Kenneth Norrie has made powerful contributions to all of these developments.
Norrie’s long-standing commitment to engagement with the
profession, or rather professions (not just the judiciary, solicitors and advocates but also, through his work within the
Children’s Hearing system, with social workers, children’s reporters and others), is well-known and it is difficult to imagine
any family law specialist wanting to be without their own copy
of Parent & Child – and at £155 it is, at least in the way of these
things, very good value. The utility of the work for practitioners is further strengthened by the significant contributions of
John M Fotheringham WS and Kirsty J Hood, Advocate, to several of the chapters.
The book is, as would be expected, immensely well-written in a formal and measured style that is in no way difficult to
follow. Where the law is unclear or underdeveloped, and is
therefore difficult to get to grips with, the (sometimes apparently contradictory) approaches in the case law are clearly
explained and the human rights law or comparative law context explained. In many instances it is possible to surmise what
the author’s preferred approach might be but those familiar
with Professor Norrie’s practitioner-focussed articles and engagement with law reform might wish at some points in the
text that he would be more blatant about his own view of how
to develop the law but the fact that he has resisted such temptations is, no doubt, to his credit given the role of SULI titles.
In these days when many students hope to get by on the
basis of a very basic text and information lifted from a few online
blogs of varying degrees of reliability, the publication of a new
edition of Parent and Child is a boon to those teaching family
law. It will no doubt have instantly found its place on many
reading lists meaning that those students willing to engage with
a more substantial treatment of issues can pick up the extra
marks that come with engagement with more nuances and indepth materials. I have certainly noted numerous passages that
will provide the starting point for dissertations and honourslevel essays.
As a legal historian it is a little disappointing to see the
historical development of the law being trimmed back. This is
justified not only by issues of word count (at c.900 pages the
book is probably as large as it is convenient to present in a
single volume) but also on the grounds that “a more detailed
historical consideration of various matters … are of only limited contemporary significance”. Reference is, however, made
to appropriate alternative sources and also to earlier editions
of Parent & Child – librarians (sorry, information and coffee shop
managers) should therefore be reminded of the utility of retaining at least one copy of previous editions rather than being
too eager in consigning them to a skip.
But this is not a legal history text and, in the face of such a
well-written, authoritative, accessible, wide-ranging exposition
of the current law it is difficult to find fault – difficult and frankly
pointless. The only suggestion for improvement that comes to
mind is that, now that SULI titles are being made available
electronically, there may be more scope for issuing updating
supplements.
Brian Dempsey, University of Dundee
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2014 SCOLAG (August)
Page 179
The Diary is
sponsored by
August 2014
Scottish Legal News - www.ScottishLegal.com
Diploma in Professional Legal
Practice
Contact Susan Clark on 0141 353 3354
or email: [email protected]
Contact 0131 226 7411 or email:
[email protected]
or email: [email protected].
5th August, Glasgow
The University of Glasgow is holding an
open afternoon for its Diploma in
Professional Legal Practice. A “Diploma
Question Time and Panel Discussion”
will allow senior tutors to be asked
about the core and elective courses.
Thereafter, join the Diploma team,
senior tutors, tutors and former
students for light refreshments and the
opportunity for networking. Venue:
Lecture Theatre, Sir Alexander Stone
Building, 16 University Gardens.
Contact to confirm attendance email:
[email protected].
ADR in Family Law
Appeals to the Upper Tribunal
26 August, Glasgow
LSA morning seminar (3 hrs CPD); see
www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected]
4 September, Glasgow
CPAG experienced-level course, see
www.cpag.org.uk/scotland/training/.
Contact 0141 552 3303 or email
[email protected].
Contracts of Employment
Conducting a Civil Proof
18th September, Glasgow
LSA morning seminar (3 hrs CPD) aimed
at all those advising home owners in
arrears whether they be solicitors in
private practice, law centres, CABx,
independent advice agencies and local
authorities. See www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected].
Refugee Journeys & Asylum Process
20th August, Glasgow
LSA afternoon seminar (3 hrs CPD); see
www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected]
ESA Appeals
21 August, Glasgow
CPAG
standard
course,
see
www.cpag.org.uk/scotland/training/.
Contact 0141 552 3303 or email
[email protected].
st
Land Reform in Review
22nd August, Aberdeen
In this symposium a gathering of
interested observers will consider
matters across the wide spectrum of
practice areas that land law reform
touches on, including matters as diverse
as succession law and planning law. It
will be chaired by Malcolm Combe, an
adviser to the Land Reform Review
Group, in the James Scotland Suite,
MacRobert Building, University of
Aberdeen.
Contact
Carol
Davies
at
[email protected].
Fees in Employment Tribunals
25 August, Glasgow
LSA evening seminar (1.5 hrs CPD) on
the basis of the legal challenges to the
introduction of fees into the ET and EAT;
thereafter to discuss the possible
alternatives in terms of the remedies
and forums which could be used in order
to assert employment rights. See
www.lsa.org.uk.
th
th
27th August, Edinburgh
An ACAS training course; for details see
http://bit.ly/acas-sco .
Contact 08457 383736 or email
[email protected].
Universal Credit
27th August, Glasgow
CPAG introductory course, see
www.cpag.org.uk/scotland/training/.
Contact 0141 552 3303 or email
[email protected].
Bribery Act 2010
2nd September, Glasgow
LSA morning seminar (3 hrs CPD); see
www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected].
Data Protection
2nd September, Edinburgh
A Law Society of Scotland CPD for new
lawyers evening seminar (1.5 hrs CPD);
see www.lawscot.org.uk/events.
Contact 0131 226 7411 or email:
[email protected]
Housing Benefit Problem Areas
2nd September, Glasgow
CPAG’s standard level course looks at
housing benefit problems that tenants
commonly face, including welfare
reform cuts, suggesting practical
solutions to problems familiar to many
advisers. It also looks ahead to how
these issues will apply when housing
benefit is replaced by universal credit
and
pension
credit.
See
www.cpag.org.uk/scotland/training/.
Contact 0141 552 3303 or email
[email protected].
Sheriff Court Procedure
3rd September, Dundee
A Law Society of Scotland CPD for new
lawyers evening seminar (1 hr CPD); see
www.lawscot.org.uk/events.
th
4th September, Glasgow
LSA morning seminar (3 hrs CPD) on
technique and practice; see
www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected]
Challenging PIP Decisions
9th September, Glasgow
CPAG course, see www.cpag.org.uk/
scotland/training/.
Contact 0141 552 3303 or email
[email protected].
Education Law
9th September, Edinburgh
A Law Society of Scotland seminar (4
hrs CPD); see www.lawscot.org.uk/
events.
Contact 0131 226 7411 or email:
[email protected]
Education Law Update
10th September, Glasgow
LSA morning seminar (3 hrs CPD) with
Sir Crispin Agnew of Lochnaw Bt QC; see
www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected]
Training for Trainers
10th – 11th September, Glasgow
This two-day CPAG course aims to
increase the skills and confidence of
those new to training and to allow more
experienced trainers to re-examine
their style and methods; see
www.cpag.org.uk/scotland/training/.
Contact 0141 552 3303 or email
[email protected].
Domestic Abuse
16th September, Glasgow
An LSA morning seminar (2.5 hrs CPD)
on Understanding and Responding to
Men’s Experiences of Domestic Abuse.
For full details see www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
Mortgage Repossessions
Employment Law Basics in a Day
19th September, Glasgow
LSA one day seminar (5 hrs CPD); see
www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected].
Refugee & Migrant Child Rights
23rd September, Glasgow
LSA one-day introduction to migrant
children and young persons’ rights in
Scots law, (5 hrs CPD); see
www.lsa.org.uk.
Contact Susan Clark on 0141 353 3354
or email: [email protected].
2014 SCOLAG (442, August) 161 - 180
Events Diary
Domestic Abuse –Legal
Responses
25th September, Glasgow
A Law Society of Scotland CPD for new
lawyers evening seminar (1 hr CPD).
Contact 0131 226 7411 or email:
[email protected]
Personal Independence
Payment
25th September, Glasgow
This popular one-day CPAG course gives
an introduction to PIP which is replacing
disability living allowance for working
age people. See www.cpag.org.uk/
scotland/training/.
Contact 0141 552 3303 or email
[email protected].
Overpayments of Benefit
2nd October, Glasgow
CPAG course, see www.cpag.org.uk/
scotland/training/.
Contact 0141 552 3303 or email
[email protected].
Please send details by email to:
[email protected]
Scottish Legal News
- focused, fast & free Get the latest up to date news about Scots law, legal services and the professions
emailed direct to you every weekday.
www.ScottishLegal.com
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2014 SCOLAG (August)
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