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Safe to Come Back? As Our Workplaces Open up Again, What Is Expected of Employers to Safeguard Health? Civil solicitor advocate Roberton: the lessons of Family businesses: QCs: why so few? recent events a special need for advice P.16 P.18 P.24 Journal of the Law Society of Scotland Volume 65 Number 7 – July 2020 Safe to come back? As our workplaces open up again, what is expected of employers to safeguard health? Click here to see Peter’s welcome message Publishers Editor The Law Society of Scotland Email > [email protected] Atria One, 144 Morrison Street, Read > www.lawscot.org.uk/news-and-events/blogs-opinions/ Edinburgh EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Follow > twitter.com/jlsed e: [email protected] President: Amanda Millar Vice President: Ken Dalling Jury out? Chief Executive: Lorna Jack What to do about jury trials? Of all the and others affected will also suffer the Online resources issues to have faced the legal profession more if cases are left hanging. www.lawscot.org.uk due to COVID-19, this one is perhaps the Is the problem essentially COVID- www.journalonline.co.uk most intractable. related, or was there already a serious www.lawscotjobs.co.uk The essentials are by now familiar. backlog due to longer term underfunding, Subscriptions This month will see the first solemn as some allege? Either way, promises of Practising Certificate (inclusive cost) £680; trials in Scotland since March, but only extra money, if forthcoming, would not in Non-Practising Members (UK and Overseas, initial exercises to test social distancing themselves provide a solution. Logistical inclusive cost) £315; Annual subscription UK £84; safeguards, each taking up two or three issues remain. Overseas £108; Trainees Free regular courtrooms plus other facilities. A proposal currently being promoted Editorial Meanwhile Lord Carloway, in a statement is “Nightingale courts”, borrowing from Connect Publications (Scotland) Ltd which praised the courts, and court users, the name of the temporary hospitals set Editor: Peter Nicholson: 0131 561 0028 for progress on other fronts, issued a up to prevent the NHS being overrun at e: [email protected] stark warning that proposals put the height of the pandemic. Back in Advertising: Elliot Whitehead: 0131 561 0021 forward to facilitate more trials April the Scottish Government e: [email protected] amounted only to “tinkering at suggested the use of non-court Review editor: David J Dickson the margins” of a backlog that buildings was unworkable Online legal news: could reach 3,000 cases by due to practical difficulties, e: [email protected] next March. though in a paper in late May Other Connect Publications contacts, While not calling for the Society was still arguing it telephone 0141 561 0300 juryless courts, the Lord should be explored further. It is Head of design: James Cargill (0141 561 3030) President was clear that a regrettable that we appear to be [email protected] “political solution” will be required. no nearer a decision on what can be Editorial board But the legal profession, and not just achieved, let alone any action on this front, Austin Lafferty, Lafferty Law defence lawyers, appears united that the when some additional provision is almost Andrew Todd, Springfield Properties Plc jury system is sacrosanct, if possibly with certain to be needed, whatever else is done. Philip Hannay, Cloch Solicitors fewer jurors in less serious cases. “If we It may turn out that, as with the schools, David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co were just safeguarding our incomes, we something like full capacity can be Kate Gillies, Harper Macleod LLP would be pushing for judge-only courts,” is achieved sooner than was being predicted the message. “But the principle of keeping only recently. But even on the best case the system is more important.” scenario for control of the virus, special At the same time we cannot overlook measures will be needed for an extended that justice delayed may end up being period to tackle trials already pending. justice denied. For accused, particularly if Unless a workable alternative is agreed, Disclaimer on remand, human rights issues will come and urgently implemented, constitutional The views expressed in the Journal of the Law Society of Scotland are those of invited contributors into play sooner or later, and Holyrood tradition may find itself in opposition to and not necessarily those of the Law Society of cannot legislate those away. Complainers practical human rights. Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any claims or representations made in any advertisement, in the Journal and accepts no liability to any person for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. By so responding, Contributors or placing reliance, readers accept that they do so at their own risk. On no account may any part of this If you would like to contribute to Scotland’s most widely read and respected publication be reproduced without the written permission of the copyholder and publisher, legal publication please email: [email protected] application for which should be made to the publisher. © The Law Society of Scotland, 2020 Alison Tony Tom Ken Ruth ISSN: 0458-8711 Weatherhead Jones QC Marshall McCracken Croman Total Net Circulation: 13,689 is a partner is a partner and is solicitor is a family is a partner (issue specific May 19) with Dentons civil solicitor advocate business with Macnabs, Av. Net Circulation: 13,628 (Jul 18 - Jun 19) UK & Middle advocate with member of the consultant Perth East LLP Brodies LLP Society’s Council and teacher July 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.7 – JULY 2020 Perspectives Features Briefings In practice 04 Journal online 12 27 Civil court 38 Professional news Our website exclusives for July A health related Q & A for Case management, and more COVID research; Innovation employers as workplaces Cup; SLAS; jury trials; policy 05 Guest view 28 Licensing reopen post-COVID-19 work; SLCC; specialists Thembe McInnes Farewell, with a retrospective 41 The Word of Gold 06 Letters 16 29 Planning How to listen to clients Life after COVID-19; Reviews Tony Jones on his path to QC Revised rules under COVID-19 as a civil solicitor advocate; 42 Anti-fraud: IT or not? 07 Offbeat 30 Insolvency and why are there so few? When old ways may be better Quirky news; Profile column New legislation, not all temporary 44 Trauma informed training 08 President 18 30 Tax New video on domestic abuse Help for members; engagement Tom Marshall revisits the HMRC action on furlough fraud with Government debate on the Roberton report 45 Creative child contact 32 Immigration in light of recent events Some Family Mediation ideas “No recourse to public funds” Regulars 46 Risk management 22 33 Discipline Tribunal Client and transaction vetting Ruth Croman’s first experience Four recent cases under COVID-19 09 People of family law arbitration 34 Property 31 Consultations 48 Appreciation The new land reform right to buy 40 Notifications 24 J Haldane Tait, solicitor, editor, 49 Archive Could you be a family business 37 Property auditor and friend to many 50 Classified adviser? Ken McCracken asks PSG: new protocols 50 Recruitment 49 Ask Ash A mum struggles to fit in work 26 The Scottish Solicitors’ Help from the Benevolent Fund offers help Scottish Solicitors' Benevolent Fund: Page 26 ONLINE INSIGHT PUBLISHED ONLY ON WWW.LAWSCOT.ORG.UK/MEMBERS/JOURNAL/ White privilege: Workplace harassment: Territorial scope, again: Copyright, charities what should we do? the third party issue Lawson revisited and creative commons The Glass Network founder Sam Middlemiss considers The latest case on the territorial Fergus Whyte offers a Drew McCusker believes that the law on liability for sexual scope of UK employment law summary of the things that white members of the profession harassment in the workplace offers an opportunity to examine charities might want to think need to take action in relation by non-employees, in the the correct approach to a 2006 about in relation to copyright to racism – by celebrating context of a Government House of Lords case on which generally and in applying diversity and actively dismantling Equalities Office consultation doubt has since been cast, Kieran creative commons licences institutional racism. on possible reforms. Buxton argues. to their intellectual property. 4 / July 2020 OPINION Thembe McInnes As Black Lives Matter raises the profile of BAME issues, in what senses should the colour of a person’s skin matter in the Scottish legal profession? Are there things we need to become more comfortable with? oes it matter that I am Black? law students to go to a school where family heritage and private As a society our first instinct is to say benefactors are not a thing. I need it to be OK for invitations to no, of course it doesn’t. We tell our children networking events to be sent regardless of faith. Presence is surely D that it doesn’t matter what colour their skin is, more important than the contents of the glass in hand. that kindness and love are all that matter. Our I need everyone to get comfortable being uncomfortable. As universities are melting pots into which students legal professionals, we need to own our lack of understanding of diverse ethnicity, race, gender and socio-economic background and experience. Because it is in this space that we listen, we learn, are welcomed in the hope that they emerge with a wealth of and we begin to empathise.
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