The Journal Employment Survey 2020

Evolving Convention: Contracted-out services: Necessary intervention: child abduction at 40 private protection? EHRC joins judicial review P.18 P.22 P.26

Journal of the Law Society of Scotland Volume 65 Number 12 – December 2020

Double life The Journal Employment Survey 2020: pros and cons of homeworking across the profession, and the search for the right balance Now available on Westlaw UK andas an as eBook an eBook on onThomson Thomson Reuters Reuters ProView™ ProView™

Residential Tenancies Peter Robson; Malcolm M Combe 4th Edition Residential Tenancies is the go-to resource for landlord and tenant law as it applies to housing in Scotland. Its accessibility and all-inclusive content make it a useful addition for legal practitioners, students and housing welfare advisors. This 4th edition has been fully updated to reﬂect major legal changes in the private rented sector and includes coverage of the recently introduced private residential tenancy, the default lease in the private rented sector. A detailed exposition on the difference between leases and licences on both sides of the Anglo-Scottish border is also covered.

Financial Provision on Divorce and Dissolution of Civil Partnerships Alan Bayley; Ruth McCall 2nd Edition This title remains the essential, ﬁngertip guide to all major ﬁnancial provisions on divorce, comprising extracts from authorities on the subject with examples of how it operates in practice. Written for lawyers, by lawyers Financial Provision on Divorce is a convenient and practical text, easy to use and includes reference to pertinent quotes from the key authorities, linked to the relevant case law. This text looks at all the new legislation in this area and covers the increasingly important topic of pension sharing. With everything you need for advising clients in one place, this title is extremely helpful and saves valuable time spent on detailed research.

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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/ Now available on Westlaw UK Edinburgh EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Follow > twitter.com/jlsed e: [email protected] andas an as eBook an eBook on onThomson Thomson Reuters Reuters ProView™ ProView™ President: Amanda Millar Vice President: Ken Dalling Chief Executive: Lorna Jack

Online resources Employing flexibly www.lawscot.org.uk (home page) www.lawscot.org.uk/members/journal/ Whether and to what extent to allow only a small minority saying they cannot www.lawscotjobs.co.uk Residential Tenancies working from home is a question that has work from home, why should this be? Subscriptions increasingly faced legal sector employers Some respondents gave their employers Peter Robson; Malcolm M Combe Practising Certificate (inclusive cost) £565; in recent years, and one that has met with credit for trying to be fair through the Non-Practising Members (UK and Overseas, 4th Edition mixed responses. crisis; others expressed resentment at their inclusive cost) £315; Annual subscription UK £84; During this year’s COVID-19 restrictions treatment. If there is an overall message Overseas £108; Trainees Free Residential Tenancies is the go-to resource for landlord and tenant law as it applies to housing in there was no choice. But now that our from the survey, it is that to get the best Scotland. Its accessibility and all-inclusive content make it a useful addition for legal practitioners, Editorial faltering return towards normal business from your people, treat them as individuals students and housing welfare advisors. Connect Publications (Scotland) Ltd should accelerate with the vaccination and trust them to pull their weight. Editor: Peter Nicholson: 07785 460743 programme, what can employees expect? This 4th edition has been fully updated to reflect major legal changes in the private rented sector and e: [email protected] Perhaps the question employers should Final countdown? includes coverage of the recently introduced private residential tenancy, the default lease in the private Advertising: Elliot Whitehead: 0131 561 0021 be asking is, how can we get the best from This issue happens to be the 200th rented sector. A detailed exposition on the difference between leases and licences on both sides of the e: [email protected] our people? As our lead feature on under my name as editor. (I worked Anglo-Scottish border is also covered. Review editor: David J Dickson the Journal’s 2020 employment on a few before that.) Shortly Online legal news: survey shows, this does not before I started, there was e: [email protected] permit a blanket answer. a cover feature predicting Other Connect Publications contacts, Some are more than eventual catastrophe in telephone 0141 561 0300 happy to continue working the criminal courts if the Head of design: James Cargill (0141 561 3030) from home, and believe defence sector continued to [email protected] they are more productive be underfunded and failed Financial Provision on Divorce and Editorial board that way; others the to attract enough new blood. Austin Lafferty, Lafferty Law reverse. Perhaps the majority The only surprise (if it is Dissolution of Civil Partnerships Andrew Todd, Springfield Properties Plc believe it benefits them to be such) to criminal lawyers today Philip Hannay, Cloch Solicitors able to do part and part, often by is that the Government still fails to David Bryson, Baillie Gifford Alan Bayley; Ruth McCall Ayla Iridag, Clyde & Co increasing the proportion of time spent appreciate the extent and urgency of the 2nd Edition Kate Gillies, Harper Macleod LLP at home if that previously featured. What problem that has now developed. The is also significant is that more people despair at last month’s limited response This title remains the essential, fingertip guide to all major financial provisions on divorce, comprising recognised a detriment than saw a benefit to the plea for additional support was real, extracts from authorities on the subject with examples of how it operates in practice. to their health or wellbeing from being and heartfelt. However the situation looks Written for lawyers, by lawyers Financial Provision on Divorce is a convenient and practical text, easy entirely home based, from which we can in another 200 months, I will not be here to use and includes reference to pertinent quotes from the key authorities, linked to the relevant case reasonably conclude, I suggest, that most commenting on it. Will the defence bar be? Disclaimer can be trusted to propose their own best law. This text looks at all the new legislation in this area and covers the increasingly important topic The views expressed in the Journal of the Law of pension sharing. With everything you need for advising clients in one place, this title is extremely Society of Scotland are those of invited contributors outcome to optimise their performance. It would be nice to conclude with some and not necessarily those of the Law Society of Yet not all employers have taken this on upbeat thoughts about this year; perhaps helpful and saves valuable time spent on detailed research. Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any board: the survey reveals that there are the best that can be said is that the end is claims or representations made in any advertisement, in the Journal and accepts no liability to any person some who expect all staff to be back in the in sight. I hope you will all feel the benefit for loss or damage suffered as a consequence of their office, as before, once this is possible. With of a good Christmas break. 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, or placing reliance, readers accept that they do so at their own risk. On no account may any part of this Contributors PLACE YOUR ORDER TODAY publication be reproduced without the written permission of the copyholder and publisher, If you would like to contribute to Scotland’s most widely read and respected sweetandmaxwell.co.uksweetandmaxwell.co.uk | +44 | 0345 (0)345 600 600 9355 9355 application for which should be made to the publisher. legal publication please email: [email protected] © The Law Society of Scotland, 2020 ISSN: 0458-8711 Lisa Eleanor Cameron-Wong Jan Lindsay Average circulation: Reilly Deeming McDermott Todd Ogunyemi Print edition Jul 19-Apr 20: 13,788 is a senior is legal is a solicitor is former legal is a director, Digital edition May-Jun 20: 13,626 solicitor with officer with with the services adviser and co-author Audit pending Brodies LLP the Scottish Equality & with South Emma Keil Human Rights Human Rights Lanarkshire a senior Commission Commission Council associate, with DWF © 2020 Thomson Reuters TR1331938/11-20

December 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.12 – DECEMBER 2020

Perspectives Features Briefings In practice

04 Journal online 12 30 Criminal court 40 Council members December’s website exclusives To work from home, or not? Roundup, including self defence The full current list, including The search for the right balance latest appointments and 05 Guest view 31 Corporate is revealed by the 2020 election winners Emma Jardine Procurement transparency Journal employment survey 42 Professional news 06 Viewpoints 32 Intellectual property Next Vice President; SLCC and Survey selection; Blog; Reviews 18 IP in combatting climate change SLAB annual reports; policy Now 40 years old, the Child 07 Offbeat 34 Agriculture work; more on legal aid Abduction Convention has Quirky news; Profile column A rare case featuring right to buy evolved in its application with 44 The Word of Gold 08 President our regard for children’s views 34 Sport How to disagree for the team The need for governments FIFA rules for coaches, women 46 Risk management to show respect 22 35 Discipline Tribunal Conveyancing in the era of Contracted-out public services Two recent cases remote working Regulars should still be subject to the Human Rights Act, but the 36 Property 48 The Eternal Optimist courts tend not to accept this “Part of” reports are not enough Stephen Vallance on countering 09 People that critical inner voice 37 Property 33 Consultations 26 Barony Register’s new custodian 49 Ask Ash 47 Archive Why the Equality & Human My friend is too dependent 48 Notifications Rights Commission intervened 38 In-house 50 Classified in a recent case seeking Interview: a range of experience 51 Recruitment permission for judicial review will always serve you well

Law Society of Scotland full Council list: Pages 40-41

ONLINE INSIGHT

PUBLISHED ONLY ON WWW.LAWSCOT.ORG.UK/MEMBERS/JOURNAL/

Brexit, Schrems II Charities and Online pricing: Insolvency: HMRC Brexit and family law: and international the Equality Act the CMA is watching moves up the rankings where are we now? data transfers Charities who take Gordon Downie and Scott Altered insolvency Lisa Girdwood reviews Laura Irvine warns of the positive action to benefit Rodger look at how the rules now give HMRC the current state of play need to keep an eye on a group with a shared Competition & Markets an improved ranking as regarding areas of family events until we see how protected characteristic Authority is homing in against floating charge law where regulations data transfers abroad should benefit from a on activities related to holders and unsecured will cease to apply with will be regulated after Supreme Court ruling resale price maintenance, creditors regarding the end of the Brexit 31 December. upholding a decision particularly regarding taxes collected on transition period. furthering that object, online sales practices. its behalf, as Andrew as Sophie Mills explains. Ronald describes.

4 / December 2020 OPINION Emma Jardine Since late spring, the prospects for fair treatment of prisoners during the pandemic have sadly receded – it’s time to revive the positive intentions, and act on them

oward League Scotland last contributed to the Fast forward to December 2020 and the country is in the second Journal in May 2020. (Yes, that does feel like a wave of the virus. An outbreak of infections at HMP Barlinnie is lifetime ago.) At that point, we believed the significantly higher, and potentially more serious, than anything H picture looked promising in our prisons, but being we saw in the first wave. One in four of those in custody is being realistic and pragmatic souls, we acknowledged held on remand. Regime restrictions amount to prolonged solitary we’d need to ensure that any gains weren’t confinement for many. The court system backlog will take years squandered, that questions continued to be asked and that to work through. The number of people on home detention curfew assurances were kept. As Scotland’s leading independent penal remains stubbornly low, and at current completion rates it will reform charity, it’s our job. take more than five years to clear waiting lists for programmes Late spring was an age when we were being kind to each other. which would support parole applications. The prison population is Articles reminded us that people in prison were human beings, that predicted to keep rising and is already at 94% of its pre-pandemic they were as frightened of the pandemic as everyone else and level. We’re almost back to where should be extended the same public health protections. we started. Such articles didn’t even get the usual backlash. It all felt That’s why we need to progress less divisive. We were all pulling together “to fight the viral a second emergency release enemy” and “flatten the curve”. We searched our thesauruses without delay. The Cabinet for metaphors, and blithely imagined a new normal of always Secretary himself said in evidence doing the right thing, at the right time. Layers of bureaucracy and to the Justice Committee on lengthy approval processes appeared to evaporate, as we all got 18 August, that for “humane and to the heart of the matter: saving lives came first, and everything public health reasons” the prison else second. population couldn’t be allowed to As summer advanced, however, things weren’t looking so rosy. return to pre-pandemic levels. Where were the potentially lifesaving, restricted dial, mobile This needs to happen, as new phones required to maintain vital family contact? Well… they were ways and decisive action already in some prisons, but not in others. Technical difficulties abounded. seem a thing of the past. Early Delays were understandable, it was said, given the size of the in the pandemic we had quick task. decision making and arguably slow implementation. Now it feels But that was OK… virtual visits had been rolled out across the like slow decision making and implementation at some unnamed entire estate. Not everyone’s loved ones knew quite how it all time in the future. worked or had enough data, but they were available to all, and we Or perhaps it’s less structural and more personal than that. should look at the uptake figures later to see how many people Maybe we’ve simply run out of kindness, as we slip back into actually participated. asking the familiar questions around why we spent so much public Smaller scale prison inspections resumed, with prisoners and money giving prisoners mobile phones. Looking back, perhaps late prison officers alike praised for their handling of the health crisis. spring was as good as it was going to get. It was full of promise, Two prisons were found not to be following guidelines regarding that prisoners wouldn’t get left behind and forgotten about. It’s access to fresh air… this one was rectified when HM Inspectorate just as well that it’s Howard League Scotland’s job not to allow for Prisons in Scotland highlighted that this sat “uncomfortably that to happen. with human rights legislation”. And who could possibly argue with an emergency release of 348 prisoners to reduce overcrowding, support single cell occupancy and slow the spread of infection – but it was not the most vulnerable prisoners, such as pregnant women or those Emma Jardine is policy and public affairs adviser with Howard requiring 24 hours a day social care. League Scotland, an independent Scottish charity relying on In short, despite the headlines, not everything was quite as membership fees and donations alone positive as it seemed. Questions remained unanswered, and not all w: howardleague.scot assurances were being kept. Our work was far from done. e: [email protected]

December 2020 \ 5 VIEWPOINTS BOOK REVIEWS

More experiences reported in the Journal A Practical Guide to the Law employment survey (feature, p 12) of Prescription in Scotland ANDREW FOYLE Some varied employment Worked from home whilst children PUBLISHER: LAW BRIEF PUBLISHING ISBN: 978-1912687640; PRICE: £39.99 experiences during and were off school (tough) but when since lockdown... husband (teacher)’s holidays began In his preface, the author is at pains to point out that this is We have had a very small number of I went into office along with my not intended to be an academic work but one aimed at civil redundancies but all staff and partners colleagues, as was expected to do so. law practitioners. That is as may be, but a work such as this are on reduced income – gradually Bosses found work for us that “could has been much needed given the challenges to previously increasing – until our fee income not” be done from home. accepted views in recent years. The law is stated as at normalises. We expect this to be (Solicitor, smaller firm) 1 December 2019. early 2021. As stated in chapter 1, the book focuses on “negative (Partner, small/medium sized firm) Stress is still a problem prescription”. In eight chapters, it covers the basic law before for many, and employers getting into the meatier issues as to when the clock starts to Pay freeze has been in existence may not be helping... run, and interruption and suspension. As the author states, in every year due to abysmal legal Stress is exacerbated by the lack some marginal cases, the way an action is pled can be crucial. aid remuneration. of business support and childcare There is a very useful analysis of the so-called “discoverability (Solicitor, smaller firm) responsibilities. My employer expects test” which has caused concern in recent times. that as I am a keyworker my husband The author deals with the rationale behind the proposals Economic picture was previously will care for my children. He earns for reform which led to the Prescription (Scotland) Act 2018, fairly bleak; it is now worse. We have more than me and also has a stressful not yet in force. As he states, transitional arrangements will until now sustained a policy of no job. I am looking for alternative require careful consideration. compulsory redundancies but it is employment as I am not prepared to This is an easy to read book on a subject which can hardly extremely precarious as to whether cope with this indefinitely. be described as simple to understand. In achieving that result, that can continue. (In-house) the author is to be commended. I should have liked the book (In-house) to have contained an index; against that, there is good use of Our job is stressful at the best of times footnotes throughout. I was unemployed from 23 March but the additional worry of trying Professor Stewart Brymer, Brymer Legal Ltd. having left my previous position to keep everything going through For a fuller review see bit.ly/3qpidPP to start a new role. That role was COVID-19 has been exhausting and cancelled on the day that I was due has had an impact on everyone’s Annotated Criminal to start. I accepted the position with mental health. On a positive note, we my current firm on a reduced salary have all stuck together and tried to Procedure (Scotland) simply to have a job. support each other and I think that this Act 1995 (Solicitor, smaller firm) is something which will have a very SHIELS, BRADLEY, FERGUSON AND BROWN beneficial impact on the firm in the PUBLISHER: W GREEN ISBN 978-0414078031; PRICE £102 Not everyone expects to long term. continue to work flexibly... (Partner, small/medium sized firm) “As always, the authors give an authoritative analysis of the During the last lockdown, we all Act and discussion of the most relevant case law.” required to work from home; however, I left employed work to work for Read the review by David J Dickson, review editor, we are now expected to be in the myself as a way of reducing stress. at bit.ly/3qpidPP office full time. (Experienced female solicitor) (Solicitor, smaller firm) Women Don’t In normal times, role can be quite I didn’t previously work from home. stressful but has been manageable. Owe You Pretty I would like to continue doing so With closure of nurseries and my work FLORENCE GIVEN (CASSEL: £12.99; E-BOOK £7.99) however the firm will be expecting demands remaining the same however us back in the office once the work became incredibly stressful, more “Florence Given is the big sister you never restrictions are lifted. I will be than I have ever experienced in my realised you needed, and her novel will make asking for a change to my career, having a significant detrimental you see the world... through a completely new perspective.” working arrangements. effect on my mental health. This month’s leisure selection is at bit.ly/3qpidPP (Senior position, large firm) (In-house)

BLOG OF THE MONTH legable.co.uk

Legable is a new website dedicated to making Why ‘The Model Lawyer’ Does Not Exist”, the legal profession available to everyone, tells of her struggles and lack of confidence no matter their background. It includes sections as someone who felt she did not fit in. on funding, support, work experience – and Her message? “Don’t try to fit the blogs, with personal experiences from aspiring cookie-cut-out of what you think and practising lawyers. a lawyer should be.” Tanzina Islam’s “A Graduate’s Reflection on To find this blog, go to bit.ly/2JEJJUK

6 / December 2020 WORLD WIDE WEIRD No defying the gods Cartoon villains Criminal lawyers would have less to do if the curse of Pompeii A string of cartoon characters could be extended. including Mickey Mouse, Bugs A Canadian tourist has returned artefacts she stole Bunny and Buzz Lightyear were from the ruins of the Roman city destroyed when listed as due to appear at Stoke-on- Vesuvius erupted in 79AD, claiming they have brought Trent Crown Court after a system her 15 years’ bad luck. test was posted live in error. Signing herself “Nicole”, she sent the objects to a travel agency bbc.in/37utY7V with a letter of apology, begging “forgiveness of God”. Now 36, she feared the theft of two mosaic tiles and pieces That’s a dear doo of ceramic had led to her family’s financial misfortune and her A Belgian racing having a double mastectomy after twice being diagnosed pigeon has sold with breast cancer. for a feather- “We can’t seem to ever get ahead in life. We are good people ruffling £1.4 million and I don’t want to pass this curse on to my family, my children after a bidding or myself anymore”, she wrote. war between two She is not alone. Pompeii has a museum dedicated mystery Chinese to returned stolen artefacts, often accompanied by bird fanciers. confessional letters. bit.ly/2Vr5Qtt After COVID, PROFILE the robots Tourist bosses in Yokohama, Japan, have unveiled a 60ft Fiona Robb walking robot modelled on the “Gundam” cartoon, that they hope Fiona J Robb (one of two Fiona Robbs at the Society) is director will help attract visitors back after of Professional Practice, leading a team of solicitors offering free, the COVID-19 shutdown. bit.ly/3VtFMjj confidential support and advice on the rules and guidance

Tell us about your career so far? What are you most TECH OF THE MONTH I started with J & F Anderson (now Anderson proud of in your career? Strathern). I worked in litigation for many years, The pandemic has affected businesses, finances, before joining the Society in 2003. It’s 30 years families, physical and mental health, but through it all since I was admitted, and I’m lucky to have lovely the profession has rallied. The numbers of calls and colleagues who joined me in a small virtual emails we received more than doubled, demonstrating celebration. They are an amazing bunch. solicitors’ commitment to their clients: criminal solicitors continuing to attend courts, civil What are the most significant agents adapting to online hearings, and changes you have seen? conveyancers pulling out all the stops. I I have to comment on the huge impact recently heard of a relieved client getting of the digital revolution. I for one am keys for their new home at 11.30pm! grateful for the technology at our Wakeout! fingertips this year. But I know that with How do you plan IOS, free trial; £5 monthly sub it, many solicitors are under increased to spend the Christmas holidays? If you’re keen to keep fit while it’s pressure to be available virtually 24/7. We need I succumbed to the lure of a lockdown puppy, dark outside and you’re working to look after ourselves and each other and preserve so the holidays will be a great time to start training, from home, Wakeout could be the a work-life balance. The Society proactively and of course I am looking forward to getting my app for you. It features a series supports wellbeing and members can find some daughters home. I hope all my colleagues have a of easy, mini-workouts you can useful resources on our website. well earned and peaceful break. do around the house; no gym equipment is required. Go to bit.ly/3qpidPP for the full interview Reviewed at bit.ly/3wweLbq

December 2020 \ 7 PRESIDENT Amanda Millar

Lawyers at home as well as abroad are suffering from Government failures to respect their work and its needs, to the detriment of the rule of law, and society as a whole

...the last article of 2020: Christmas is to expect last minute managing of Brexit brings on its way, swiftly followed by our full a disrespectful expectation of further resilience from break from the EU. a profession which has already shown a high level Hopefully 2021 will bring vaccines of under-resourced goodwill to keep the justice system, and an opportunity to rebuild. property and business sectors running or protected since Last month was interspersed with March. These highly trained, high value contributors So attendances at the IBA conference, to society deserve more respect, involvement and resource. hearing from current and former leaders from across the world with Worthy winners many highlighting the importance of the rule of law, the benefit Congratulations again to all members who were deserving winners of respecting it and the potential damage to negotiating ability, at the Scottish Legal Awards for their contributions to society, reputation and credibility when criticising the behaviour of others. business and the profession. The circumstances in Hong Kong, and the treatment of lawyers in The winners include Iain Smith for the Law Society-sponsored Iran, Turkey and elsewhere remain a concern. category of Lawyer of the Year. Iain’s work on being trauma informed has brought thought and opportunities for improvement Governments must show respect to the lives of so many. Also, as The facts that UK politicians are being called out by the IBA Chair of the Year, Elaine Motion, President for “damaging rhetoric”, that the UK Government has an outstanding lawyer with produced little by way of planning information on Brexit (despite recent high profile challenges sending emails in late November highlighting “getting ready to government behaviour. can take longer than you think”), and that both Westminster Both wonderful leaders and and Scottish Governments continue to fail society by failing to promoters of the benefit to our adequately fund legal aid to ensure access to justice, should be society of independent legal an embarrassment to all our politicians. Pandemic backsliding professionals upholding the is posing a combined threat to our democracy, human rights, rule of law. and the rule of law. Many of us will have a break We live in a country with world leading legal professions, over the upcoming Christmas well regarded and looked to throughout the world for guidance, period, and if you do get some standard setting and high values. Sadly, the same regard does time away from work I hope you not appear to exist internally. The risk of loss of our hard won and find rest, safety and joy. If this justified reputation will be significant. It will impact on the ability to period is a challenging one for negotiate trading agreements that follow our EU departure, and so you or people you know, and impact the economy. It will impact our credibility in the world, and you can, please reach out, check so may damage the influence that many of our legal experts are in and take care (www.lawscot. able to bring to ensure meaningful collaboration and improvement org.uk/members/wellbeing/). Just because we can’t be together in the world and at home. doesn’t mean we can’t be connected. Our members are being hampered from advising business due Stay safe, and here’s to 2021 bringing more positivity to lack of a “deal” or clarity on whether there is to be a “deal”. What than 2020. we know about the Brexit planning can be found on the dedicated section of our website (www.lawscot.org.uk/brexit/). These members and businesses are already managing and coping with Amanda Millar is President of the Law Society of Scotland – the threats of the global pandemic we are all facing this year, and [email protected] Twitter: @amanda_millar

8 / December 2020 Intimations for the People section should be sent to [email protected] To advertise here, contact Elliot Whitehead on 0131 561 0021; People on the move [email protected]

APPLEBY, Jersey and globally, has GIBSON KERR, Edinburgh, has The directors of THE SCOTTISH THOMPSONS appointed Scottish solicitors Mark appointed Beverley Cottrell, BARONY SOLICITORS SCOTLAND, Watson and Benjamin Bestgen who joins from MOV8 REAL REGISTER Glasgow, Edinburgh, (who joins as an associate) among ESTATE LTD, to a newly created have Dundee and Galashiels, six appointments and promotions in role as head of Property, and appointed has promoted mass its Corporate team in Jersey. Karen Sutherland, previously Alastair litigation lawyer Amy with SCOTTISH CHILDREN’S Shepherd, Haughton to associate. Allan Argue, formerly of REPORTER ADMINISTRATION, as a partner in CARPENTERS, has started his a solicitor in the Family Law team. COULTERS, URQUHARTS, solicitors, own practice, ARGUE & CO LEGAL, Edinburgh, as Edinburgh, intimate that specialising in personal injury KILPATRICK & WALKER, Ayr custodian of THE SCOTTISH on 31 October 2020, claims and employment law, at First is pleased to announce the BARONY REGISTER from James Baird WS retired Floor, 9 George Square, Glasgow G2 appointment of Harry Stewart 1 December 2020. He succeeds as a consultant to the 1QQ (t: 0141 378 4145). Peter Sheddon as an associate Alastair Rennie, who has retired. firm. The partners and with effect from 12 October See article on p 37. staff wish him a long and BALFOUR + MANSON, Edinburgh 2020. He joins the firm from well earned retirement. and Aberdeen, has McCORMICK & NICHOLSON, SHEPHERD & WEDDERBURN, announced the Newton Stewart. Edinburgh, Glasgow, Amanda Wilson, retirement Aberdeen and previously a partner at of partner MILLER HENDRY, Perth, Dundee London, THORNTONS, Dundee, and family and Crieff, has appointed recently announces has started her own lawyer Anne qualified solicitors Fiona Kelly that Gillian practice, AMANDA McTaggart, to its the Court department, and Carty WILSON FAMILY LAW, a solicitor Erin Peoples to its Residential has been at Office 12, 4th Floor, since 1976, who Property department, both based elected chair Dundee One, 5 West formerly practised at McINTOSH in Dundee. Shona Douglas, of of the firm, Victoria Dock Road, McTAGGART, Aberdeen. the Residential Conveyancing succeeding Paul Hally who Dundee DD1 3JT department of the Crieff office, has completed two terms since (t: 01382 219004). She is BTO SOLICITORS, has recently been promoted to 2014. An accredited specialist an accredited specialist Glasgow and paralegal after becoming a Law in insolvency law and licensed in family law, a trained Edinburgh, Society of Scotland accredited insolvency practitioner, she steps collaborative lawyer and has paralegal. up from leading the Commercial an arbitrator with the appointed Disputes & Regulation division. Family Law Arbitration Stephen Ashleigh Morton, formerly with Group Scotland. Humphreys RUSSEL & AITKEN, Falkirk, SIMPSON & MARWICK, as a consultant has started her own practice, Edinburgh WOMBLE BOND in its Litigation MORTON BRODY LAW, PO Box and North DICKINSON, Edinburgh department, with a special focus on 21768, Falkirk FK1 9GQ Berwick, has and internationally, has social housing litigation. He joins (t: 07368 136435), specialising in appointed promoted Richard Pike, a from SHEPHERD & WEDDERBURN, children, family, debt, housing and Jill Andrew dispute resolution private where he was a partner. employment matters. as a client lawyer, to partner director. She in its Edinburgh office, BURGES SALMON, Edinburgh MURRAY ORMISTON LLP, joins from one of 31 promotions and UK-wide, has hired dispute Aberdeen are pleased to SHOOSMITHS, where she was across its UK offices. resolution practitioner Ewan announce the appointment of principal associate. McIntyre, who will be based in its Morag Stevenson, from WRIGHT, JOHNSTON Edinburgh office. He joins from 1 September 2020, and Sarah STEWART & WATSON, & MACKENZIE LLP, BURNESS PAULL, where he was McPherson, from 1 December Turriff and elsewhere, Glasgow, Edinburgh, a partner for eight years, before 2020, both as associates in the announces the Inverness and which he was head of Litigation at Family Law department. appointment Dunfermline, has MORTON FRASER. of Catherine acquired the business Magdalen A Ogilvie, sole Bury, an of J GIBSON BURNESS practitioner with FORRESTER accredited ASSOCIATES PAULL, OGILVIE & CO, Edinburgh, has specialist in LTD, Edinburgh, retired from practice. agricultural Edinburgh, Glasgow law, as an whose and David Rennie, former managing associate in the Agriculture founder Aberdeen, partner of STRONACHS, team in its head office in Turriff. Jeff Gibson has promoted has joined MANSEFIELD She joins from LEDINGHAM is stepping to partner Ruaridh INVESTMENTS LTD, Aberdeen, CHALMERS, where she was a down from the Cole in its Funds team. as legal counsel. senior associate. business.

December 2020 \ 9 Ready for lift off?

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December 2020 \ 11 EMPLOYMENT SURVEY Homeworking: a journey

Working from home has been a blessing for some, a curse for others – but for many, the search is for the best balance. Peter Nicholson reports on the 2020 Journal employment survey, which tried to lift the lid on lockdown

a landmark year in • Overall, do you work more efficiently and • “When technology fails it is harder to resolve people’s minds as it effectively from home? Yes, 29.6%; no, less so: matters quickly from home.” (Senior solicitor) approached – and the 25.8%; it makes little difference, 27.5%. • “Everyone working from home is very inefficient, year no one expected It is striking that one in five of those who and very depressing.” (In-house solicitor) 2020: as it turned out. A year felt homeworking gave them a better work- of startling change, life balance, also believed their mental or Business impact much of it enforced; physical health was suffering. Your comments How has the pandemic affected employers? and one of sharply indicate that many are now searching for the As table 1 shows, respondents reporting contrasting fortunes, dealt by the lottery of life. right balance between home and office. The redundancies at their workplace have almost Much has been written about its impact; what main reason is the effect on mental wellbeing doubled, from less than 18% to nearly 34%, while new light could this year’s Journal employment of feeling isolated at home, and missing the those reporting headcount growth (28%) dropped survey shed? interaction with colleagues that comes with office by two fifths. Although only 12% had personally life. Some also feel the lack of administrative been furloughed, 43% stated that some solicitor Home comforts? support, and/or the difficulties of managing, colleagues had been, and 58% said the same It is no surprise that this year’s experience looks supervising and developing staff. of non-solicitor staff. Almost a third (31.5%) set to have a dramatic effect on working patterns, As for home circumstances, whether or not the were subject to a pay freeze (up from 6.6% last but the scale of the change is notable. Pre- kids are off to school can make all the difference. year), 25% have taken a cut (7.8% last year), and COVID, only 18% of our respondents routinely And at least one person got on less well if their more than 27% are on voluntary or compulsory worked from home, whether all (less than 2%) or partner was also using home facilities. Some reduced hours. part of the time, and three quarters of the latter rejoice at not having to commute; for others it Most employers do appear to have tried to will do so more in future. Nearly 64%, however, helped demarcate the working day. preserve jobs. They froze pay, or cut it temporarily did not previously work from home but are likely “Apologies for the conflicting answers,” one (usually by 20%), if not working hours, rather than to continue doing so, with up to 25% saying this associate wrote. “Some days I wish I could go lay people off. Vacancies went unfilled. At least will be full time. Fewer than one in 40 say they into the office and other days I’m glad I don’t one firm gave the choice of a pay cut on the same cannot work from home, but some employers are have to. I think some time in the office and some hours, or the same pay for extra hours. Some still insisting that people go back to the office as at home is the most optimal way to work going are now restoring pay cuts, and even reinstating restrictions lift. forward.” Another explained: “I have selected missed salary rises or bonuses; and while there Inevitably, homeworking suits some better both better and poorer work-life balance as are still some fears over redundancies, fewer than than others – and more so in some respects than whilst I can have a better balance I also work 7% of respondents admitted to having these. One others. Survey responses show: longer hours and in the evenings as a result of not-for-profit introduced a voluntary exit scheme • Better work-life balance? Yes, 57.8%; being at home.” in the hope that would suffice. no, poorer: 17.3%. Other comments included: “Overall I’m satisfied that the firm acted • Easier to concentrate? Yes, 34.8%; • “Each day varies to be honest, some days I am prudently and I’ve been rewarded for my hard no, harder: 29.1%. incredibly motivated and other days very easily work,” said one senior associate who was given a • Fewer interruptions? Yes, 52.7%; distracted.” (In-house solicitor) deferred lump sum and bonus payments instead no, more: 15.5%. • “Not commuting makes a huge difference to of their annual rise. An associate commented: • As easy to contact others through IT? wellbeing.” (Another in-houser) “I think [my firm] has tried its best to be open, Yes, 49.8%; no, better being in the same • “Working from home is making me severely transparent and honest with us all... Across the location: 39.3%. depressed.” (Non-equity partner) board we all took a pay cut and as of November • Better for your physical and/or mental health? • “Certain things are easier to do at home but the it will go back to 100% pay. I expect there will Yes, 26.4%; but outweighed by the 33.5% who lack of variation (just sitting in front of a screen be job losses in due course but it is doing its said not so good. all day) is relentless.” (Non-practising position) best to avoid this.”

12 / December 2020 The response

Thank you to all 743 respondents who took part in the survey – fewer than last year but showing similar patterns and trends. This year’s gender breakdown is 65% female and 33.4% male, a slightly wider gap than last year, with six others who chose a different identity. Around 35% work in-house, slightly more than with the whole profession, while at 10.5% legal aid practitioners are down 2% from last year. Again there was a relatively low takeup among new lawyers, with just 17% having been qualified less than four years. Table 4, covering the most common employee benefits in the profession, shows a similar pattern to recent years, the movements for pension provision perhaps reflecting the higher proportion of in-house lawyers responding this year. Table 5 shows dispute resolution work as the most common practice area for both females and males, with commercial property the closest challenger. For the most recent comparable reports, Table 1. Has your organisation see Journal, December 2019, 16, and experienced any of the Journal, October 2018, 16. following over the past 12 months? (all sectors) Table 2. Salary spread, in percentages, by years’ PQE: female change (full time or self-employed, all sectors) % on 2019 YEARS’ £30,000- £40,000- £50,000- £60,000- £70,000- £80,000- £90,000- Non-solicitor (or support) < £30,000 >£100,000 57.6 N/A PQE 39,999 49,999 59,999 69,999 79,999 89,999 99,999 staff on furlough 0-2 6.4 61.3 25.8 3.2 3.2 0 0 0 0 Solicitors on furlough 43.1 N/A 2-4 0 46.1 42.3 11.5 0 0 0 0 0 Redundancies 33.8 +16.0 4-10 1.4 21.9 46.6 20.6 5.5 0 2.7 0 1.4* Pay freeze 31.6 +25.0 10-20 3.5 7.0 22.1 20.9 18.6 10.5 7.0 3.5 7.0** Headcount growth 27.8 -18.9 >20 5.9 2.9 18.6 13.7 13.7 10.8 9.8 3.9 20.6*** Bonuses reduced, 26.2 +17.2 suspended or scrapped

Reduced working hours/ Table 3. Salary spread, in percentages, by years’ PQE: male 15.9 +13.8 days – voluntary (full time or self-employed, all sectors)

Reduced working hours/ £30,000- £40,000- £50,000- £60,000- £70,000- £80,000- £90,000- 11.4 +10.9 Years' PQE < £30,000 >£100,000 days – compulsory 39,999 49,999 59,999 69,999 79,999 89,999 99,999 Benefits reduced, 7.2 -0.1 0-2 5.9 29.4 29.4 17.6 11.7 0 0 0 [1 resp] suspended or scrapped 2-4 0 26.7 40.0 20.0 6.7 0 0 6.7 0 Merger or takeover 4.5 -13.3 4-10 2.9 5.9 29.4 26.5 11.8 8.8 0 0 8.8* Bonuses introduced or 4.3 -6.8 increased 10-20 4.9 4.9 9.8 24.4 9.8 14.6 12.2 0 19.5** Benefits introduced or 2.6 -6.4 increased >20 3.2 6.4 7.4 8.5 9.6 12.8 7.4 11.7 33.0*** Compulsory overtime 2.6 +0.4 * Breakdown is £100,000-£149,999: 1.4%F/0%M; £150,000-£199,999: 0%F/2.9%M; £200,000-249,999: 0%F/2.9%M; £250+: 0%F/2.9%M ** Breakdown is £100,000-£149,999: 3.5%F/12.2%M; £150-£199,999: 1.2%F/4.9%M; £200-249,000: 1.2%F/0%M; £250,000+: 1.2%F/2.4%M Don’t know 7.4 -14.4 *** Breakdown is £100,000-£149,999: 14.7%F/17.0%M; £150-£199,999: 2.0%F/5.3%M; £200,000-249,999: 2.0%F/5.3%M; £250,000+: 2.0%F/5.3%M

December 2020 \ 13 EMPLOYMENT SURVEY

One public body is making a small weekly childcare and perhaps more likely to be put on payment over winter to all homeworking staff for furlough. On our survey, 8% of women, but 5% additional heating costs. of men had been on furlough for up to three Some were more equal than others. “The firm months, but equal numbers at 5% had been on furloughed as much staff as they could... the longer furlough. And more men than women people who were not furloughed were working (32% against 22%) had seen earnings decline on an increased workload for less pay,” one over the year, though the balance was the other senior solicitor recorded. Such situations were way among those reporting no change (40% compounded, another respondent observed, if women; 29% men). those kept working on reduced pay still had to Across the board, among full time earners incur childcare costs. And one associate has a 8.5% of women, but 20.9% of men, were in the definite grievance: “My pay was reduced by 33% six figure brackets, and of those with more than for six months, and I was expected to work full 20 years’ PQE, 41.1% of women, compared 25.5% time hours during this time, on 66% of my usual of men, earned below £60,000: tables 2 and 3. part time pay.” The gaps are down slightly on last year. Some have fallen between stools when it Legal aid troubles While some respondents specifically pointed comes to support. Fee paid tribunal chairs had no In view of the difficulties facing the legal aid to the COVID situation as having increased their work during lockdown, and no earnings because sector, we analysed their experiences this past stress levels, overall percentages for problem they were not classed as employees – but being year. Only 10.5% of respondents take on legal stress have not changed much – but women are paid through PAYE were not eligible for self aid cases to any extent, the most common areas almost twice as likely (27.4% against 14.7%) to employment support either. being family (55%), dispute resolution (37%), have discussed their problem with someone else, Some, of course, have been exceptionally criminal defence (32%), mental health (27%), and and men more likely (14.3% against 10.5%) to busy, including property solicitors since the housing (19%). have chosen not to, or not to know who to turn to market restarted, and Government lawyers. Of those working full time, one in six (16%) (4.9% against 3.6%). earn less than £30,000 a year, and five out of eight (62.5%) less than £50,000, compared with Round the corner Table 4. Which benefits below 44% across the whole survey. At 19%, Are things likely to improve over the next do you currently receive? they were as likely as most in private practice 12 months? The balance of sentiment is negative, (top responses, all sectors; last year’s to have been furloughed, and 45.6% have seen but much more so in the public sector, where position in brackets) their earnings decline over the past year while hardly anyone expects an improvement and a further one in three (33.3%) have seen no around half a further worsening, as compared 1 More than 25 days' holiday per 49.4% change (whole survey showed 23.2% and 35.9% with private practice where the balance is around year (excluding public holidays) respectively). Stress figures were higher than 10% negative in small firms (though with more (1) average, though not markedly so, but 27.6% don’t knows) and 6% in large. The commercial 2 Smartphone/tablet (3) 42.8% admitted to frequently or constantly having in-house sector manages to take a more positive money worries, compared with 11% overall. view, despite forebodings about Brexit, with 3 Cycle to work scheme (2) 41.7% 6% more who foresee an improvement than a 4 Pension (defined benefit) (6) 38.4% Still unequal deterioration. We can only hope the optimists are Has the gender balance been affected? The Next proved right. 5 Training support (work related) 36.2% 100 Years project reported that women fared less (4) well than men through the lockdown, finding For some more individual comments, 6 Ability to buy/sell annual leave 31.2% themselves taking on more of the additional see Viewpoints, p 6 (8) 7 Private health care (5) 28.5%

8 Life or health insurance, 27.5% Table 5. Which practice areas do you currently work in? including critical illness cover (7) Sectors with more than 10% response. (Respondents were able to select all sectors that applied. Last year’s position in brackets) 9 Cash bonus (individual 23.6% performance) (9) All females All males 10 Employee assistance (10) 22.2% Dispute resolution (1) 19.3% Dispute resolution (3) 28.9%

11 Cash bonus (firm performance) 20.6% Commercial property (3=) 19.3% Commercial property (1) 21.3% (12) Private client (2) 16.9% Company and commercial (2) 18.4% 12 Pensions (money purchase) (13) 15.5% Residential property (5) 14.2% Private client (5) 16.7% 13 Childcare/crèche or vouchers 14.1% (11) Administrative and public (6) 13.8% Regulation and compliance (7) 15.5% 14 Other assistance with transport 13.8% Company and commercial (3=) 12.1% Residential property (4) 15.1% including season ticket loan and parking permit (14) Regulation and compliance (7) 11.4% Administrative and public (6) 13.8% 15 Pension (stakeholder) (16) 13.1% Family law (8) 10.8% Accident and injury (-) 10.9%

No benefits 6.2% Housing (-) 10.1% Family law (-) 10.9%

14 / December 2020 IN ASSOCIATION WITH

Now we are... 25! Frasia Wright Associates is celebrating 25 years of… recruiting lawyers, building trust!

December 2020 marks a milestone for Scotland’s trusted by our people, our candidates and our clients. leading legal-only recruitment agency. And that is still what we are about today. It’s been a Frasia Wright, Managing Director, has been involved rollercoaster with many challenges and opportunities in legal recruitment since 1988. She has worked in along the way, and as we move through uncertain both New York and London and is today recognised times we know there will be twists and turns, but with as having the longest track record in Scottish legal a great team we will take them together.” recruitment, where her name is synonymous with Over the last 25 years, it has been our pleasure professional integrity and confidentiality. to work with lawyers throughout their careers – After working with a national recruitment agency from starting out as NQ lawyers, assisting on their in both their offices in New York and then Glasgow, chosen career path, to returning to us as recruiting Frasia saw a gap in the legal recruitment market for partners, now responsible for the direction of the realistic recruitment advice. From there Frasia Wright new generation of lawyers. It has been a challenge Associates was created and it is with great pride to continually meet the needs of the changing face of that, 25 years later, our approach and values have the legal profession, and we have loved every minute cemented our place in the legal recruitment industry, of it. Like us, our clients have also been on as Scotland’s leading legal recruitment agency a journey of business development, exclusively placing lawyers. through mergers and demergers, “I set up Frasia Wright Associates in expansion into new areas of business December 1995, working from home and to across the UK and overseas, recessions give me more flexibility with my two sons, and navigating through a year none of who were one and two at the time,” Frasia us will forget with COVID-19, but we will comments. “Who knew that would be the get through this! norm now, and I am thrilled that all Check here to see what some of our the team here are supported clients had to say about us: to manage their work and www.frasiawright.com/after-25-years- personal commitments too! what-do-our-clients-have-to-say- “Twenty five years ago about-us/. I felt there was a gap in Our business is spread across the legal agency market Scotland, so instead of organising for realistic recruitment a formal event to mark this advice that was anniversary, we have decided commercially aware to donate to LawCare, a charity and ethical, and we are proud to support in I was passionate their mission to support legal about creating a professionals experiencing mental business that was health and wellbeing issues.

Frasia Wright

December 2020 \ 15 IN ASSOCIATION WITH

Cybersecurity in a year of crisis A must read for law firms, their leaders and everyone responsible for security and business resilience

hen this year has maximum pain if it’s made public. seen a global Which gives them two ransom pandemic, urgent opportunities. First, they demand concerns about payment for the decryption key. W climate change, Next, they threaten to release and the publicly, piece by piece, the uncertainty of Brexit consume much confidential data they’ve stolen of our lives, TV and the press, some about you and your clients. Unless, business leaders may have taken of course, you pay up. their eye off the growing threat The critical thing to understand posed to businesses in general – here, is that even if you have and law firms in particular – by the perfectly configured backups, they proliferation and increasing will still not be enough to protect sophistication of cybercrime. you and your clients. No surprise, The emergence of new and then, that amounts demanded as disturbingly effective methods of ransom, and the amounts actually cyberattack during the last being paid out, have shot up. 12 months only serves to You need seriously to consider demonstrate the ingenuity of the additional protection. criminal gangs responsible, and why cyber risk controls comfortably in Multi-factor faking place last year may well no longer Another thing that’s evolved is how be secure. As methods of attack continue to evolve – and they very easily people can sign into and misuse your email account. most certainly will – so must our defences and controls. A while ago, crooks would usually get hold of your email address and password via phishing attacks or by buying your Doubled opportunities for ransomware credentials on the dark web. Then they could log in, send and One of the most frightening forms of attack, ransomware can receive emails as if they were you, spy on your mail, steal leave firms operationally crippled, waste billable hours, and information, divert payments and so on. seriously damage or even destroy client relationships. Office 365 Multi-factor authentication (MFA) was designed to Previously the malware usually got into your system put a stop to this, preventing anyone else from logging into your when someone clicked on a link, letting in the ransomware account unless they had second factor authentication, usually a that automatically found data and files to encrypt. Now, code sent by text to your mobile phone. So far, so protected. But criminals can automatically scan firewalls, looking for ports not any more. and vulnerabilities to gain access. And with so many people 2020 has seen new ways of getting around MFA. Notably, currently working remotely on poorly configured connections fraudsters can now accurately mimic the 365 login page. So you and devices, they are hitting the jackpot. think you’re typing into Office 365, but in fact, it’s a fake cover Worse still, the way the attack progresses has also changed. page. Which automatically inputs your credentials into the real Once you’ve been breached, the bad guys no longer just go Office 365 page, except on the fraudster’s computer. straight to the encryption stage. They often take their time When the text with the code comes through to your mobile, examining confidential client and proprietary data. you do the same – why wouldn’t you? And the criminals have Then they steal the material they think will cause you successfully logged in as you. Free to do what they want. And

16 / December 2020 when they’ve enabled the optional 60-day validity period, the year. Big players like they’ve given themselves 60 days’ access. Sodinokibi (aka REvil), Maze and Phobos saw their Growth of the criminal ecosystem share of total attacks go Of all the many routes there are to cyberattack businesses, the down due to the incursion exponential growth of ransomware is arguably the most telling. of smaller players and the So let’s pick up the story again and take a look at where it’s emergence of new entrants heading. This is a high stakes game, and given the kind of data to the market. held, law firms are at existential risk. This speaks to two So why the rapid growth? Well, it’s becoming more easily somewhat disturbing achievable. It can be hugely profitable. And the chances of issues. One, that this is an criminals being brought to book are almost non-existent. established market that is Attack tools are now freely available, as are low cost not going to go away. And Ransomware as a service (Raas) kits. So aspiring cybercrooks two, that the proliferation we no longer need high levels of technical knowledge to get spoke of is accelerating. involved. Affiliate ransomware platforms offering Raas provide easy market entry, and especially with more remote working, Protecting ample opportunity for good returns. your practice At the same time, there has been an increase in so called The rise in the volume “big game hunting” – the process we mentioned earlier – and sophistication of where more thoughtful and focused attacking gangs more cyberattacks in the closely examine the opportunities that successful breaches legal sector and the provide for financial gain, whether by theft of money or by accompanying threat to high value ransom. business operations are of Lower ranking criminals add to the risk, using the Raas increasing concern to the model to function as “lead generators”, earning a cut or Law Society of Scotland. commission by passing on the opportunity to the big boys, Solicitors need to be who will be better able to fully exploit the financial blackmail mindful of their regulatory potential of the breach. obligations to protect client funds and data. They should run their firms in accordance with The cost of ignoring the problem proper governance and risk management principles, and comply Ransom inflation, as we indicated, is compounding the problem. with statutory obligations to protect personal data. Research suggests that by the middle of this year, the average Effective cybersecurity is not just a technology issue. ransom being paid was $178,000 (close on £138,000), rising Rather, the biggest vulnerability lies in the day-to-day sharply for larger organisations. practices of people. So effective configuration of technology This is no surprise: the exfiltration of high value data (the must be accompanied by proper training and effective policies “steal then encrypt” model) results in criminals having much and controls. greater negotiating power over their victims, so that firms feel Firms should question their reliance on third party IT under greater pressure to give way to ransom demands to providers to provide security. In addition, many firms are taking prevent their own and their clients’ confidential data from public no, or inadequate, steps to test or audit their policies, processes release, even when system recovery from backups is possible. and systems, which should be reviewed regularly, and where From the attacker’s business perspective, the ransomware possible, by someone independent. to payment ‘conversion rate’ has gone up very substantially, This, in turn, raises the question of the ability of some senior including for the smaller Raas players who are also now leaders to protect their firms against cyberattacks. Who plays seeking higher ransom returns. the role of figurehead or senior “cyber champion” in your law firm – responsible for dealing with cybercrime and the steps A market that’s here to stay that need taking? Given the amounts of money involved, the sophistication of organised cybercrime gangs shouldn’t come as a shock. This Successful cyber attacks are now happening with increasing is a thriving market. And like any successful business, these frequency against firms of all sizes. Leaders of law firms have a operations now have their own PR machines, with websites responsibility to satisfy themselves that the right measures are and press releases announcing breaches, naming names, and in place and regularly reviewed to protect the firm, their partners the theft of data – threatening to make it public, if ransoms and clients. They should not be relying on generalist IT support. aren’t paid. Savvy leaders already know this. This market, again, like any other, has its own dynamics. And analysis shows that the “market share” of different ransomware This article was produced by the Society’s Strategic Partners Mitigo. players and affiliate programmes has changed throughout Take a look at their full service offer on our member benefit page.

December 2020 \ 17 CHILDREN The Hague Convention: a 40-year evolution

It is 40 years since the Hague Convention set out a code for international child abduction law. Lisa Reilly describes how its application has evolved with our understanding of children’s maturity, and with the concepts of habitual residence and consent

25 October 1980, the Hague Voice of the child Convention on the Civil Aspects During the drafting stages of the Convention, proposals to of International Child Abduction include a defence on the basis that a child might object to being was ratified, giving effect to returned to the country of their habitual residence were met a multinational commitment by mixed views. After some debate, article 13 was included. to securing the return of It provides that: “The judicial or administrative authority may On abducted children across also refuse to order the return of the child if it finds that the international borders. child objects to being returned and has attained an age and In the ensuing 40 years, the degree of maturity at which it is appropriate to take account of Convention has ensured the return of thousands its views.” of children to their home states which, as far as But in the early days of the application of the measures of success go, is pretty remarkable. “Attitudes on whether to Convention, the courts took a cautious approach It was a precursor to the 1989 United Nations when considering the views of younger children Convention on the Rights of the Child, article 11 of consider the views of – perhaps unsurprising given that, in the 1980s, which provides that parties must combat the illicit younger children have children’s voices in cases that affected them were transfer and non-return of children overseas by little more than a whisper. promoting bilateral or multilateral agreements. changed a great deal The Convention itself stipulates no age of There are currently 101 signatories to the 1980 in the last 40 years” presumed maturity for a child to express a Convention, making it one of the most widely view, but in the now fairly historic case of Re R endorsed international instruments. (Abduction: Hague and European Conventions) Over time, the way in which the Convention is [1997] 1 FLR 663 it was observed that 10½ was “an age which applied has evolved, echoing a growing recognition of one would normally consider as being on the borderline” in this the importance of children having their voice in cases respect. Global statistics available then show that only 5% of affecting them. Other interesting developments include objecting children were under the age of eight. how habitual residence is determined (the gateway test Attitudes on whether to consider the views of younger for the engagement of the Convention), and whether children have changed a great deal in the last 40 years. As there may be some scope for refinement of the defence our understanding of the psychological impact of decisions on of consent. the welfare of children has evolved, so too has our insight into

18 / December 2020 the ability of very young children to express views about the parent in that state imagines is for an agreed period of time. arrangements made for their care. Until recently, only children The parent in Scotland refuses to return the child at the end of aged 12 or over were presumed old enough to express a view the agreed period, which is an unlawful retention. But by then in cases affecting them. But that presumption was removed by the child has become integrated in Scotland and their habitual the Children (Scotland) Act 2020, and the court rules now make residence has shifted. This may be an unintended consequence it explicit that taking the views of a child will only be dispensed of the welcome shift from a legalistic to a facts-based analysis with if that child is under five and on cause being shown. of the meaning of habitual residence. The importance of a relatively young child’s views in such cases was highlighted recently in W v A and X [2020] CSIH 55, The defence of consent in which the court placed considerable weight on a 10-year- The issue of whether the left-behind parent has consented old girl’s objection to returning to Poland, resulting in a return to their child moving to, or staying in, another state – and order being refused following an appeal to the Inner House. whether they have in fact given their express permission The child had been removed from Poland by her mother a few for such a move – is a complex one and often gives rise days after a local court refused her application for relocation, to contested cases. and the child’s father petitioned the Court of Session for her Article 13(a) of the Convention provides an exception to the return to Poland. The child made clear during an interview with obligation to return an unlawfully retained or abducted child, a child welfare reporter that she did not wish to go back to her if the person opposing the return establishes that “the person... home country. or other body having care of the person of the child... had Despite this, the court at first instance ordered her return, consented to or subsequently acquiesced in the removal so the mother appealed. The Inner House observed that the or retention”. court had not met the expectation that it should “engage with Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 the stated reasons for the child’s concerns, with due weight FLR 1051 established that such consent must be “clear and afforded to them”. Although the Inner House acknowledged that unequivocal”, and while consent can be given for removal at an the nature of a child’s objections, or the manner in which they unspecified time in the future, that consent must still apply at are expressed, could mean that the court should attach little the time of the child’s actual removal. weight to them in the overall balancing exercise, the child’s But what amounts to clear and unequivocal consent seems objections in this instance were found to have been authentic to be highly subjective. This issue was considered by the Inner and independent. The decision at first instance was overturned House in YS v BS [2019] CSIH 50. In this case, the parties and the return order refused, allowing the child to remain in lived as a family in Italy until January 2019, when the mother Scotland – in accordance with her wishes. fled to Scotland with the children under cover of darkness. The removal was covert and clandestine, but the mother Habitual residence relied on article 13(a) as her defence, namely that the father Recognised as the gateway test for application of the had consented to the removal. The dichotomy between the Convention, the “left-behind” parent must establish that the clandestine nature of the removal and the existence of consent child who has been abducted or unlawfully retained was was explored by the court in the context of a written note, habitually resident in the state he or she left when the wrongful apparently consenting to the children’s removal to Scotland. removal or retention took place. According to the father, it had been fraudulently created, but in In the early stages of the Convention the courts took a any event was written many months before the removal, after legalistic approach to the determination of a child’s habitual which the parties had reconciled. residence, and courts in England & Wales applied a test derived Although reliance on the defence of consent might have from taxation statutes (R v Barnet London Borough Council, ex p suggested that there was no need for the mother to remove Shah [1983] 2 AC 309). her children in a clandestine manner, the Lord Ordinary held A significant shift in this approach came in 2013 with a that the consent was operative at the point of removal. The series of UK Supreme Court decisions being handed down. The Inner House upheld the decision, but did not review a much most significant among those decisions was A v A (Children) older case involving the defence, Zenel v Haddow 1993 SC 612, (Habitual Residence) [2013] UKSC 60, in which the court took a decision which has been criticised because it found consent the opportunity to clarify that habitual residence is a matter of established, even though the parties involved had completely fact and not a legal concept like domicile. The court adopted forgotten about the “agreement” which gave rise to the defence the Court of Justice of the European Union test that habitual in the first place. residence is in “the place which reflects some degree of integration by the child in a social and family environment”, Further evolution to come and so focused on the child’s actual situation. Over the past 40 years, decisions made under the Hague This approach was taken further by the Supreme Court Convention have evolved so that the voices of children play a in AR v RN [2015] UKSC 35, where it was stated beyond more significant part in the decisions that affect them, and in doubt that habitual residence is a matter of fact and it is the the facts-based, pragmatic approach that has emerged to the “stability” of the child’s residence, rather than any degree of analysis of habitual residence which lies at the heart of these permanence, which matters. A child’s habitual residence may decisions. The Convention is a dynamic and living instrument shift if the child becomes integrated in a new environment, shaped by the cases litigated under it. Will we see further and that can occur very quickly even in the absence of shared evolution of this instrument and how it is applied? That is parental intention that it should do so. inevitable around the consent defence and the way in which In fact, parental intention is just one of many factors to be it interacts with the changing, and unique, circumstances of Lisa Reilly considered. So a child might move to Scotland with one parent is a senior solicitor families who live their lives across international boundaries. from another Hague Convention state for what the other with Brodies LLP

December 2020 \ 19 FiveFive EssentialEssential TitlesTitles fromfrom W.W. GreenGreen

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PublicPublic LawLaw ScottishScottish LandLand LawLaw 4th4th EditionEdition 3rd3rd Edition,Edition, VolumeVolume 22 PaulPaul ReidReid ProfessorProfessor WilliamWilliam MM Gordon;Gordon; ScottScott WortleyWortley ThisThis fourth fourth edition edition of of Public Public Law Law provides provides comprehensive, comprehensive, up-to-date up-to-date and and accessible accessible coverage coverage of of thethe key key areas areas of of Scottish Scottish public public law. law. It It is is the the ideal ideal text text for for students, students, legal legal practitioners practitioners and and those those PublishingPublishing under under the the auspices auspices of of the the Scottish Scottish Universities Universities Law Law Institute, Institute, the the second second volume volume to to this this workingworking in in the the public public sphere. sphere. Scotland Scotland is is going going through through a a period period of of vast vast constitutional constitutional change change and and well-establishedwell-established and and respected respected work work is is a a thoroughly thoroughly updated updated and and comprehensive comprehensive account account of of Scottish Scottish thisthis fully fully revised revised text text will will cover cover recent recent events events such such as as the the 2016 2016 Scottish Scottish General General Election Election and and the the EU EU landland law. law. It It brings brings together together material material of of signiﬁcant signiﬁcant practical practical importance importance in in relation relation to to the the rights rights and and obligationsobligations inherent inherent in in the the ownership ownership of of land. land. AugustAugust 2020 2020 Referendum.Referendum. ISBN:ISBN: 9780414060524 9780414060524 OctoberOctober 2020 2020 £40£40 AlsoAlso available available as as an an eBook eBook on on Thomson Thomson Reuters Reuters Proview™ Proview™ ISBN:ISBN: 9780414017832 9780414017832 £100£100

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Signed away? Privatisation and human rights

Why should realisation of human rights depend on the public or private status of a service provider? That has been the experience with contracted-out services, but was not the intention behind the Human Rights Act, argues Eleanor Deeming

rivate providers now applies not only to “core” public authorities, heavily on the private sector in a number play a significant for example the NHS and the police, but also of areas. role in the delivery private parties when exercising functions There are mixed views around appropriate of our public of a public nature. This reflects the well levels of private sector involvement in the services. Generally, established principle of human rights law delivery of public services; however, the fact of people have no that a state cannot contract out of its human their involvement is clear. Ensuring that, where P choice in whether rights obligations. appropriate, private providers are brought the particular service The HRA was drafted at a time when within the scope of the HRA seeks to avoid a they need is the private and voluntary sectors’ role in two-tier system of rights protection. Levels of provided directly by the public sector or by a providing public services had been steadily rights protection should not differ according to private party under contract with a public increasing for decades. The parliamentary the legal status of a provider. body. What does this mean for the protection debates on the Human Rights Bill highlight Any uncertainty over the application of our human rights? What can we do in the clear intention of Parliament to give a and scope of the HRA creates unintended Scotland to ensure that our human rights laws wide interpretation to s 6. The Government and unequal outcomes for people. It also recognise and respond effectively to the wanted the HRA to apply in what it saw as “a undermines the vision that human rights reality of private sector involvement in realistic and modern definition of the state so should be central to public service delivery. public life? as to provide correspondingly wide protection During the introduction of the HRA, the phrase This issue came into sharp focus in Scotland against an abuse of human rights”. Although “bringing rights home” did not only mean that last year following the court’s decision in Ali v the precise scope was to be left to the courts people would now be able to rely directly on Serco Ltd [2019] CSIH 54. Now, with new laws to determine, Parliament was clear that the their Convention rights in domestic courts: it being introduced in Scotland to incorporate assessment should be based on the nature sought to create a wider human rights culture. a wider range of international human rights of the function being performed, and not the It was hoped human rights would become directly into domestic law, there is a need to legal status or form of the body itself. a driver in the development of law and ensure our human rights laws can operate policy, and run central to the delivery of effectively within a contracting-out culture. Why does it matter? public services. The House of Commons Public Administration Those involved in the delivery of public Functions of a public nature & Constitutional Affairs Committee report services must be clear about their obligations, Section 6 of the Human Rights Act 1998 After Carillion: Public sector outsourcing and and accept those obligations. Similarly, in (“HRA”) provides that it is unlawful for a public contracting highlights that there are now delegating responsibilities to private parties, authority to act in a way which is incompatible private markets for public services that “core” public authorities (for example central with a Convention right. The definition of simply did not exist 30 or 40 years ago. The government) should be confident and explicit “public authority” includes “any person extent of private sector involvement in our about where human rights responsibilities certain of whose functions are functions of a public services has also been highlighted by rest, before concluding agreements with public nature” (s 6(3)(b)). The HRA therefore the response to COVID-19, which has relied third parties.

22 / December 2020 Human rights leadership in Scotland A national conversation around how best to give effect to a wider spectrum of international human rights is taking place in Scotland. The National Taskforce on Human Rights Leadership, of which the Commission is a member, is working to establish a statutory framework for human rights that will incorporate internationally recognised human rights – economic, social, cultural and environmental – into Scots law. Alongside this, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which incorporates the UNCRC into Scots law, was introduced in the Scottish Parliament on 1 September 2020. The approach to defining public authorities in the UNCRC Bill mirrors the approach taken in the HRA. We now have an opportunity to provide clarity and learn from the pitfalls experienced in attempting to hold private parties to account under the Human Rights Act. In putting forward views on the UNCRC Bill to the Scottish Parliament’s Equalities & Human Rights Committee, the Commission recommended careful consideration be given to the definition of “public functions” in the bill. Drawing on the recommendations of the JCHR, the Commission proposed: Interpreting s 6: process. Evictions and lock changes were to • strengthening the definition of “public a restrictive approach be carried out without a court order. Serco, a functions”, explicitly recognising that functions In the absence of a statutory definition for private company, was contracted by the Home are public when they are performed under the terms “public authority” or “functions of a Office to provide accommodation and essential contract or other agreement with a public public nature”, the courts have been charged services to asylum seekers. body which itself is under a duty to perform with the task of interpreting the HRA to reflect The Inner House of the Court of Session that function; a fair distinction between public and private found that these circumstances did not give • developing clear interpretative guidance to functions. With some notable exceptions, rise to violations of articles 3 and 8 of the assist the courts. The Commission suggests that the courts have tended to adopt a narrow ECHR. Crucially, drawing heavily on YL, the the dissenting opinion of Lady Hale in the YL and restrictive approach to interpretation. court also found that Serco was not exercising case, which includes a list of factors that would The leading case of YL v Birmingham City functions of a public nature under s 6 HRA be highly relevant in determining whether a Council [2007] UKHL 27, in which the House and was therefore not obliged to comply with public function is being performed, would form a of Lords found that a private care home was Convention rights. strong basis for any guidance; not exercising functions of a public nature, • ensuring that future bills of the Scottish presented an opportunity to widen the A provision compromised Parliament providing for the delegation of public scope of application. The decision, by a 3-2 The Joint Committee on Human Rights functions clearly identify the human rights majority, came under much criticism as a (“JCHR”) has twice looked in detail at this obligations attached to those functions; missed opportunity. issue, releasing reports in both the 2003- • producing separate public procurement In general, the courts’ treatment of s 6(3)(b) 04 and 2006-07 sessions. The JCHR, citing guidance on the inclusion of explicit reveals a tendency to consider the institutional the restrictive interpretation of s 6 by the contractual terms in Government contracts, character of a body, for example its status as courts and the changing nature of private making clear where a private body is a for-profit company, rather than the nature and voluntary sector involvement performing public functions. of the function being performed by that body. in the delivery of public services, We must recognise the extent of This is seemingly in direct conflict with the found that this central provision private sector involvement in the intentions of Parliament and Government of the HRA had been significantly delivery of our public services and during the passage of the Human Rights Bill compromised, creating a gap in respond appropriately. The realisation through Westminster. human rights protection. of human rights cannot turn on In its 2006-07 report, the whether a service is contracted out. The Serco case JCHR considered several possible Private companies deliver many The Scottish Human Rights Commission options to remedy the situation. essential services, and they must intervened in Ali v Serco Ltd. The case The Commission believes there is be held to the same human rights Eleanor Deeming concerned Serco’s policy of changing locks potential to adopt a mix of these is legal officer with standards as their public sector on the homes of asylum seekers whom it options in our future human rights the Scottish Human counterparts. Rights holders deemed had reached the end of the asylum laws in Scotland. Rights Commission deserve no less.

December 2020 \ 23 IN ASSOCIATION WITH

Can your client experience become a Toy Story? Let Denovo help you reach for infinity and beyond

oday’s consumers are not only becoming Growing a toy retail brand from one store in the West End empowered by technology – they also have of London to more than 180 globally, didn’t happen because more options than ever before. As a result, there was a lack of companies selling our product. Far from it. brands must adapt to this new business The evolution that business went through happened right in the T paradigm, and fast. middle of Amazon’s meteoric rise to global retail domination. Consumers’ expectations are seemingly Unable to compete, you have no choice but to focus on your skyrocketing, with a recent report suggesting that 66% of USP (we all have at least one!). In our case it was all about customers say it takes more for a company to impress them creating an environment exploding with tangible fun, magic and with new products and services than ever before. And, like any theatre – creating a feast for the senses, something the likes other major business strategy, a Customer Experience initiative of Amazon could never compete with. Equally, we would place needs strong leadership to be brought to fruition. the bulk of our attention on the one area that would get people That’s why so many businesses have turned their focus talking – the customer journey. to Customer Experience rather than Customer Service. Law We decided to go beyond trying to compete, fix the problem, firm leaders should be poised to lead the charge in 2021 and slash prices or hand out discounts. We wanted to create orchestrate a game plan that addresses this important aspect of, memories. After all, we had bricks and mortar; Amazon didn’t! not modern law firms, but modern business. From the moment you step over the threshold, be that First, here are a few stats to get you thinking… physically or virtually, into any business, speak to a member of the team or engage with the brand online, you must remember 86% of buyers will pay more for a better brand experience, but one thing – every little thing you do is going to affect people’s only 1% feel that companies consistently meet expectations. perception of you. For me it was about being “The Finest Toy Shop in the 96% of customers say customer experience is important in World”. Whenever you thought about our brand, it gave you their choice of loyalty to a brand. a good feeling. That’s marketing in a nutshell, by the way. It’s the art of getting people to change their minds – or to maintain Are you aware of these stats? Do you care? If so, are you acting their mindset if they are already inclined to do business with on or ignoring them? you. Every little thing you do and show and say – not only your advertising on your website – is going to affect people’s Creating a Toy Story? perception of your brand. As someone who managed a global marketing portfolio for one Reading this, you might be thinking that offering an of the biggest experiential brands in the world for 10 years, I feel experience like that is (buzz) lightyears away from the reality of that I have enough clout to give some advice on this topic. working in the legal industry. But why?

24 / December 2020 In a legal market inundated with done it, worn the three-piece suit? choices, it’s now not enough for I would argue you have to look outside your businesses to rely on unique selling own arena to make a significant change. points or brand strength. Almost more than a service, you must sell an Lawyers do good! experience. And that experience begins Say it with me! Your job is a force for with your relationship to the client. good and you can make someone’s life better. That’s just a fact. Your aim is Is a legal firm different to give sound advice, and in most from a toy retailer? cases law firms will deliver on that You sell a product and service; your expectation. However, your client objective is to be the best in your field has no real method of assessing of expertise; you want to build a loyal the quality of the service they customer base; you are competing against receive. What they will assess some big players who are spending more is the experience they had. money and telling more people about their You work late nights for your clients, take their calls product. Sounds pretty similar to me. on the weekend, lose your hair over their divorces and What’s the expectation in 2021? Amazon labour disputes and contract negotiations. You fight recently stated that their record click to hard, obtain the best possible outcomes, and even (gulp) delivery to the door for food in London is six reduce their bills occasionally. Even after all that, how many minutes. My next Google search consisted of of your clients often limp away thinking that using your “Amazon + Time Travel”! An incredible stat. firm was actually quite difficult, even jarring – unreturned Now, the customer most likely to be receiving calls, uncertainty about progress, the “surprise fee”, etc. Why that order is a millennial whose expectation becomes just should the level of customer experience for purchasing rattan that. When next month it’s 30 minutes, if it ever will be, they are garden furniture on Amazon or a toy from Hamleys be a better going to be happy, but not over the moon. experience than when you are going through a divorce – What everyone in the legal profession needs to recognise is potentially one of the most stressful periods of your life? that their competition extends further than the new firm who Whether the customer experience was positive or negative, have set up shop at the opposite end of the high street. Amazon, how would you know? Do you ask? Deliveroo, ASOS, and Hamleys are now their competition. So, when someone calls to speak to a fee earner, how long do you Take steps towards client retention think is it acceptable to them to wait for a response. In their Delivering excellent customer experience takes the right head, “Food… six minutes, returned call…?” You need to act now, organisational culture and trained, knowledgeable staff. But add to compete. the right client experience technology platform and you can Figures released in 2020 show that: exceed customers’ expectations. • Fewer than 10% of customers who call a law firm will actually The team at Denovo are experts in supporting law firms to get to speak to a lawyer. improve their client experience and are always available to help • More than 40% of people who leave a voicemail or fill out a you cultivate the customer journey at your firm. All you need to web form wait two or three days before they hear back. do is ask. In short: most law firms don’t have the best reputation when So, if you think you can become “The Finest Law Firm on the it comes to customer experience. This is a big problem as well High Street” or “The Finest Sole Practitioner in Scotland”, reach as an opportunity. for infinity and beyond and give us a call, because at Denovo you’ve got a friend in us. Get inspired! So, where should law firm leaders be looking for inspiration? If you want to learn more about CaseLoad’s CRM/Client Retention Colleagues, other law firms, senior figures who have lived and Client Portal software and how to begin a partnership with the profession for 40-odd years? Surely, they must know Denovo, visit denovobi.com, email [email protected] or call us how clients want to be communicated to: they’ve been there, on 0141 331 5290.

December 2020 \ 25 HUMAN RIGHTS

Intervening for equality

The Equality & Human Rights Commission recently used its power to intervene in an appeal against a refusal to grant permission for judicial review, where important points about the test for permission were raised, as Cameron-Wong McDermott explains

16 October 2020, the Inner House of comply with the PSED under s 149 of the 2010 Act, and also the Court of Session delivered its with the specific equality duties under the Equality Act 2010 opinion in an appeal brought by a (Specific Duties) (Scotland) Regulations 2012. prisoner (“S”) against a decision of a Under s 149(1), public authorities must give due regard to the Lord Ordinary to refuse him need to (i) eliminate discrimination and any other conduct that permission to proceed with his judicial is prohibited by or under the 2010 Act; (ii) advance equality of On review: S v The Scottish Ministers opportunity between persons who share a relevant protected [2020] CSIH 64. Using its legal characteristic and persons who do not share it; and (iii) powers, the Commission intervened in foster good relations between persons who share a relevant the appeal to raise important points about the role and protected characteristic and persons who do not share it. importance of the public sector equality duty (“PSED”, The specific duties, which assist public authorities to meet explained further below) in policy formulation by public their general duty, require public authorities listed under the authorities, as well as the proper approach to the article 8 regulations to assess the impact of new or revised policies ECHR rights of prisoners. against the requirements of the PSED. This is known as an This article will briefly set out the facts of the case and the equality impact assessment (“EIA”). In developing any policy Inner House’s opinion. It will explore the underlying reasons they must consider evidence relating to persons who share driving the Commission’s decision to intervene in this case. relevant protected characteristics: reg 5. S also argued that his rights under article 8 ECHR had been Background breached (in that regard he relied in addition on article 14). S is a prisoner serving a life sentence at HMP Shotts. Until On 24 March 2020 the Lord Ordinary refused permission about 2017, S used videoconferencing to facilitate contact with for the petition to proceed. On the question of the PSED, the his elderly grandmother, who is cared for in a nursing home. S’s Lord Ordinary said that the guidance published by the prison grandmother suffers from dementia and is frail; it was accepted authorities on the operation of the EEDA scheme had been the that she is disabled within the meaning of the Equality Act 2010 subject of an EIA. He went on to say: “The petition is not an and could not travel to visit S in prison. appropriate vehicle for raising what are essentially theoretical S challenged decisions of the prison authorities to refuse questions under [the 2010 Act]. These have no practical him exceptional escorted day absence (“EEDA”) to facilitate relevance in the circumstances of the present case”. Finally, the contact with his grandmother outside of the prison. Applications Lord Ordinary did not consider that the refusal decisions were for EEDA are governed by the Prison Rules, and in considering sufficiently serious to engage S’s Convention rights. an application the prison governor must have regard to supplementary guidance issued by the prison authorities. Why did the Commission intervene? The refusals were challenged on several grounds, but The Commission was granted permission to intervene in for present purposes it is only necessary to mention two of S’s appeal against the Lord Ordinary’s decision to refuse them. In relation to the supplementary guidance for EEDA permission for the judicial review to proceed. applications, S argued that the prison authorities failed to Ultimately the Commission decided to intervene at the

26 / December 2020 This Christmas give your clients the experience they deserve.

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Practice Performance Matters HUMAN RIGHTS Scottish Land Law

appeal stage because it was concerned by several aspects of Publishing under the auspices of the Scottish Universities Law Institute, the second volume the Lord Ordinary’s decision. These concerns are set out in the to this well-established and respected work is a thoroughly updated and comprehensive following paragraphs. account of Scottish land law. It brings together material of significant practical importance In the Commission’s view, the Lord Ordinary failed in relation to the rights and obligations inherent in the ownership of land. to give proper or adequate consideration to S’s argument under the PSED. Key legislation includes: Having regard to the importance of the role of the equality duties in formulation of the supplementary guidance • The Conveyancing and Feudal Reform (Scotland) Act 1970 underpinning the scheme for EEDA, the Commission considered • The Title Conditions (Scotland) Act 2003 that it was not appropriate for the Lord Ordinary simply to 3rd Edition, Volume 2 • The Land Reform (Scotland) Act 2003 dismiss the petition for judicial review because it concerned October 2020 | £100 “spent and historic decisions that are no longer of any practical relevance”. There were potentially wider circumstances in which 9780414017832 Continuing from Volume I, the content of Volume II includes: that guidance might continue to apply in future situations, for Chapter 19: General Principles of Security Rights example if S (or indeed other prisoners) made applications for EEDA to visit disabled relatives. Chapter 20: Standard Securities PLACE YOUR ORDER TODAY In addition, it noted that the document relied on by the Chapter 21: Floating Charges prison authorities to demonstrate that they had carried out sweetandmaxwell.co.uk an EIA of the supplementary guidance failed to comply with +44 (0)345 600 9355 Chapter 22: Involuntary Heritable Securities the requirements for an EIA set out in the 2012 Regulations. Chapter 23: Title Conditions and other Burdens It appeared that the Lord Ordinary had taken the Scottish Ministers’ submission that the document was a complete EIA Chapter 24: Real Burdens at face value. In the course of the appeal hearing, the ministers Chapter 25: Servitudes produced what purported to be a complete EIA, though it was noted by the court that the document did not make reference Chapter 26: Judicial Variation and Discharge of Title Conditions to disability. Chapter 27: Public Access Rights In stark contrast to the situation in England & Wales, the Scottish courts have been asked to consider the requirements The Inner House’s opinion Chapter 28: Nuisance and other Delicts of the PSED in relatively few cases. The Commission is On 16 October, the Inner House allowed S’s appeal and Chapter 29: Social Control of Land Use therefore concerned that the jurisprudence in relation to the granted him permission to proceed with his judicial review. The PSED is less well developed in Scotland than it is in England & Commission’s written intervention is set out and summarised at Chapter 30: Compulsory Acquisition Wales, and that, as a result, practitioners are less familiar with paras 12-15 of the opinion. Chapter 31: Community Rights to Buy it and may feel reluctant to develop – In reaching its conclusion that the petition had a real or to respond to – arguments based prospect of success, the court found that in spite of the “If the test for on the PSED. difficulties which S would have to overcome if his case was to permission is too The intervention also reflects the succeed, it would be “going too far too fast to hold at this stage Commission’s concern about the that those difficulties are insurmountable”. rigidly applied, it is approach taken to S’s human rights The court also found that it would be too hasty to say that likely to pose a arguments. In this respect, it argued the petition had no practical consequences for S (or for other that the Lord Ordinary was wrong to prisoners who might be affected by similar circumstances), significant access say that the EEDA refusals were not since the supplementary guidance was likely to apply in to justice issue” themselves serious enough to engage respect of any future applications for EEDA. S’s article 8 rights. Relying on Lind The Inner House’s analysis of the merits of the appeal is v Russia (2010) 50 EHRR 5, it was argued that the weight of short. Notwithstanding, the Commission is pleased that the authority favoured the proposition that a refusal of leave to visit court has affirmed the Lord President’s statement in Wightman, an ailing relative did constitute an interference with a prisoner’s and applied it to S’s petition for judicial review. right to respect for family life. The Commission is grateful that the court allowed it the Finally, the Lord Ordinary’s decision reflected a concern held opportunity to intervene in this case. Many aspects of S’s by some practitioners that the test for granting petition for judicial review turned on their facts, and permission for judicial review, introduced by it ought to be stressed that the Commission was the Courts Reform (Scotland) Act 2014, s 89, is neutral on the merits of S’s applications for EEDA. being applied too rigidly by courts. In Wightman v It however believed that the appeal had wider Advocate General for Scotland [2018] CSIH 18, the strategic importance, having regard to the Lord Lord President clarified that the test is “certainly Ordinary’s interpretation of the test for permission, intended to sift out unmeritorious cases, but it is as well as the Prison Service’s application of not to be interpreted as creating an insurmountable the PSED to the scheme for EEDA. Taking barrier which would prevent what might appear into account its strategic litigation policy (see

to be a weak case from being fully argued in due bit.ly/39ajjaW), the Commission believed it was REUTERS/Russell Cheyne course”. If the test for permission is too rigidly Cameron-Wong important to exercise its statutory powers to raise McDermott applied, it is likely to pose a significant access to awareness of these issues. As the case moves on is a solicitor with the justice issue, since it will mean that fewer human Equality & Human to a substantive hearing, it believes it has achieved rights/equality law based judicial reviews will be Rights Commission its objective, and accordingly its involvement in the explored at a substantive hearing. case is now at an end.

28 / December 2020 TR1218702/08-20 Scottish Land Law

Publishing under the auspices of the Scottish Universities Law Institute, the second volume to this well-established and respected work is a thoroughly updated and comprehensive account of Scottish land law. It brings together material of significant practical importance in relation to the rights and obligations inherent in the ownership of land. Key legislation includes: • The Conveyancing and Feudal Reform (Scotland) Act 1970 • The Title Conditions (Scotland) Act 2003 3rd Edition, Volume 2 • The Land Reform (Scotland) Act 2003 October 2020 | £100 9780414017832 Continuing from Volume I, the content of Volume II includes: Chapter 19: General Principles of Security Rights Chapter 20: Standard Securities PLACE YOUR ORDER TODAY Chapter 21: Floating Charges sweetandmaxwell.co.uk +44 (0)345 600 9355 Chapter 22: Involuntary Heritable Securities Chapter 23: Title Conditions and other Burdens Chapter 24: Real Burdens Chapter 25: Servitudes Chapter 26: Judicial Variation and Discharge of Title Conditions Chapter 27: Public Access Rights Chapter 28: Nuisance and other Delicts Chapter 29: Social Control of Land Use Chapter 30: Compulsory Acquisition Chapter 31: Community Rights to Buy

REUTERS/Russell Cheyne

TR1218702/08-20 Briefings

Jury still out cases about the admission of hearsay evidence only had a jury of 12 in Scotland (!) – and in statement form, reference was made to Scots we keep it at eight for guilty, with no retrials on verdicts law and the principle of corroboration which unless the provisions of the Double Jeopardy protected accused persons; but concern had (Scotland) Act 2011 can be invoked on a fresh The debate about the “not proven” been expressed by Lord Gill in N v HM Advocate evidence basis. verdict has reached the Holyrood 2003 SLT 761 that s 259 of the Criminal election campaign, but this month’s Procedure (Scotland) Act 1995 had supplanted Betting is a mug’s game leading cases concern self defence, the common law which enabled the court to In another life I might have been a bookmaker, disclosure – and the appropriate exclude evidence thought to be unreliable, but fortunately at an early age I realised you whereas under English law the judge had had to study horseracing form avidly to turn sentence where a massive discretion to reject the statement of a witness in a profit. I still enjoy watching racing, but never embezzlement was repaid certain circumstances in the interests of justice. bet. Once I was reading a background report in The English system deploys a qualitative an embezzlement case where a plea of guilty rather than quantitative approach at the “no had been tendered but the agent said he would Criminal Court case to answer” stage (compare Williamson v “keep his powder dry” until the sentencing diet. FRANK CROWE, Wither 1981 SCCR 214 and R v Galbraith [1981] I noted the accused was not addicted to drink or SHERIFF AT EDINBURGH 1 WLR 1039), and there is a power to exclude drugs, but turned the page to discover “however evidence thought to be unfair. There are only he is addicted to fruit machines”. There was That bastard verdict two verdicts and there must be a unanimous nothing social workers could offer by way of Following the emergence of the verdict of not verdict or a 10-2 majority for guilty or not therapy, and no means of paying off the losses. guilty in 1728, Sir Walter Scott later coined guilty, otherwise the prospect of a retrial arises. I was interested to read the appeal against the above term in relation to the “not proven” By comparison, an 8-7 majority verdict for sentence Conway v HM Advocate [2020] HCJAC verdict, and controversy over the three verdicts guilty does not seem like the case has been 48 (28 October 2020), a case referred from the has come to the fore over the years. proved beyond reasonable doubt. If the judge Scottish Criminal Cases Review Commission. In a diversion from COVID-19 and another considers the jury’s guilty verdict to have been The appellant had pled guilty by s 76 letter referendum debate, it is interesting to see that unreasonable, this can only be raised on appeal to obtaining £1,065,085.32 by fraud from his “not proven” may be a topic of contention at (under the 1995 Act, s 103(3)(b)). employers Dundee City Council, through his next year’s Scottish Parliament elections. The Justice Secretary’s response has been position as an IT officer, over nearly seven years. When I was appointed procurator fiscal at to consider matters fully once the independent He was sentenced to five years four months’ Hamilton in 1996, one of my first public duties jury research published in October 2019 has imprisonment, reduced from eight years on was to attend the AGM of PETAL, a charity been considered. account of the early plea. set up by Joe and Kate Duffy following the For my own part, after a few years on the The matter was referred after further acquittal on a not proven verdict of the man bench I resolved in summary trials to abandon information that the entire sum had been accused of murdering their daughter Amanda. I recourse to the not proven verdict and restrict repaid. Only £7,337.58 had been recovered found Mr Duffy and his late wife to be dignified, my verdicts to guilty or not guilty. If the case at the time of the investigation. The appellant well informed and interested in promoting the was not proved, or worse, barely got off the had consented to the recovery of his pension abolition of this verdict. What astonished me ground, an acquittal followed and reasons were and lump sum totalling £258,966.15, and to was that at least six or seven other local people given. confiscation which recovered £49,000 in equity said they had suffered the loss of a relative It is more complicated in the jury context, from his home. The council had recovered followed by a subsequent acquittal by not although for 30 years we have told the 15 men £335,923 from its insurers, and William Hill proven. and women that there is no difference between Bookmakers had made an ex gratia payment A campaign and review by two of the three verdicts: each of £500,000. They had treated the appellant the Scottish Office came results in an acquittal. We as a VIP client, and as a result of their conduct to nothing, following a do not mention that a juror had run into problems with the Gambling consultation in 1994, and might abstain (Allison v HM Commission which ordered repayment to various peripheral reviews Advocate 1984 SCCR defrauded victims. have suggested reducing 464), and we cannot The appellant was then 51, and had kept the jury from 15 to 12, but say that one verdict appropriating money in the hope of a big win none of these piecemeal of acquittal carries to pay off all the losses. He was a first offender changes can reform a greater emphasis and had co-operated fully with the police. the system where in a than the other. There He had been referred to agencies, stopped funny sort of way the must be some confusion gambling and had forfeited 30 years of pension checks and balances from these directions. rights. In a supplementary report the sentencing are seen by most of the What I would like to judge suggested that on the new information legal profession as being see is a return to the he would have set the headline figure at seven OK – perhaps because old Scots way of two years, reduced to four years eight months. He they place undue faith verdicts, proven and would have taken no account of the money in corroboration as a not proven. Juries could recovered from insurers. The court had more safeguard. be reduced to 12 on difficulty with the William Hill payment, but In Al Khawaja and grounds of cost and space – accepted their dealings with the appellant had Tahery v United Kingdom, some Scottish courts were been dishonourable and exacerbated matters. ECHR Grand Chamber, designed by architects After considering a full range of previous 15 December 2011, who thought we cases the court concluded that sentence had

30 / December 2020 been excessive and substituted six years’ police at the locus; the complainer admitted he the client and a new trial date was fixed for imprisonment, reduced to four. owned one but said it must have fallen out of November 2019. his pocket in the assault. The jury’s deletions In October a supplementary defence Wearing an IRA T-shirt indicated they did not wholly believe the statement was lodged indicating that although While the appellants in Ward, MacAulay and complainer, perhaps tending to the view that he the accused’s defence was one of coercion, he Walker v PF Glasgow [2020] SAC (Crim) 006 (18 had produced the implement, and the directions had also been “the victim of entrapment by a November 2020) had their convictions quashed amounted to a miscarriage. The court quashed state agent”. Two female names were given, and by the Sheriff Appeal Court, this was due to a the convictions on all three charges, and information requested. lack of corroboration only. It was not denied tantalisingly did not feel the need to consider By letter in January 2019, the Crown had that at a football match they wore T-shirts the second ground of appeal, that the appellant stated that “at no time preceding... arrest was depicting a paramilitary figure wearing a black could not be convicted of both charges 1 and 3 any covert police officer deployed to engage beret and sunglasses with his mouth covered as they each concerned the same species facti. with [the appellant] or any other covert tactic by a camouflage scarf and the Irish tricolour A rare opportunity was missed to stop the deployed... no officer supplied drugs to any flag in the background. Only one officer from Crown from needlessly overloading the libel female from Renfrewshire”. Following further the Police Service of Northern Ireland was led with duplicate charges. enquiries, the Crown confirmed that no to explain that such a figure was consistent with surveillance had been used. The search warrant being a member of the IRA. The court made Disclosure used to recover drugs, cash and paraphernalia clear that had a second officer given evidence Disclosure is the cornerstone of the modern from the appellant’s home had been obtained in this context, the circumstances would have criminal justice system. Gone are the days on the basis of intelligence received. amounted to a deliberately provocative gesture when each party prepared its own case and The court was critical of the original pro towards opposing supporters and as such precognosced witnesses. The growth of human forma defence statement and indicated that if amounted to a breach of the peace. rights and the need for the Crown to disclose an accused wished the Crown to make proper more than a list of witnesses coincided with disclosure in what is intended to be a balanced Self defence reductions in legal aid. In the result, the defence statutory scheme, they should comply with This plea is not straightforward. In a dynamic, rely on the Crown to produce a summary at the the obligations set out in the scheme, namely fast moving incident, conduct between the outset, and witness statements and relevant to provide as much information as possible. parties may lead to different considerations productions to prepare their case. The multi- The court was left with no basis apart from the applying during the various stages of the fracas. media police report is still some way off, and appellant’s own musings that the information In Thomson v HM Advocate [2020] HCJAC the system’s hope for more early pleas is sought existed. The Crown said it had no such 49 (17 September 2020), the appellant was unrealistic until the agent can show the client information, so the application and appeal failed. convicted of (1) an assault by brandishing a glorious technicolour footage of the crime being Their Lordships were clearly shocked in broken bottle, (2) possessing a broken bottle committed in an attempt to stir their hazy or February 2020 that the trial had not proceeded as an offensive weapon, contrary to s 47(1) of non-existent recollection. and ordered that the case be given priority to the Criminal Law (Consolidation) (Scotland) Act In McCarthy v HM Advocate [2020] HCJAC 52 ensure it proceeded at the next calling. 1995; and (3) brandishing a broken bottle at the (13 February 2020) an appeal was taken after I presume with the belated publication of this complainer, contrary to s 38(1) of the Criminal the Crown and police stated to the defence that opinion it has now taken place. Justice and Licensing (Scotland) Act 2010. The the information sought did not exist. Concern jury deleted from the assault charge the words was expressed over the time the appellant had “repeatedly punch and kick him on the head remained in custody awaiting trial, although the and body, strike him on the head with a bottle court highlighted there had been two changes or similar item”. A plea of self defence had been of legal representation. Corporate entered to all charges. The appellant was indicted on drugs supply EMMA ARCARI, ASSOCIATE, The complainer was walking an elderly charges over two years before, and had a WRIGHT, JOHNSTON lady home when an altercation arose in a preliminary hearing in September 2018. & MACKENZIE LLP group including the appellant. The complainer A bland defence statement was lodged denying intervened, and pushing and shoving ensued the charges; no information was sought to be Just how transparent do companies need to between him and the group. It was said that disclosed. There was reference to a special be when tendering for contracts? According to the complainer fell to the ground, was punched defence of coercion, but it was indicated the AC Whyte & Co v Renfrewshire Council [2020] and kicked, and hit with a bottle thrown by the defence were ready for trial. CSOH 82 (4 September 2020), local authorities appellant. He got to his feet, whereupon the A preliminary issue minute about the search have significant flexibility when interpreting appellant broke another bottle against a wall warrant was lodged prior to trial in January the “transparency” requirement in the Public and threatened the complainer until passers- 2019 but refused as too late. A bill of advocation Contracts (Scotland) Regulations 2015. by told him to “leave it”. The complainer had and a petition to the nobile officium, both AC Whyte sought damages following the separately been charged with assaulting a described as incompetent, followed. Counsel award of a contract to a company that did female in the appellant’s company. and agents withdrew from acting at the trial not meet the minimum turnover stated in the The sheriff directed the jury that self defence diet “due to differing views on the conduct invitation to tender (ITT), relying instead on the was not open to the appellant in relation to of the defence”, and new dates were set for capacity of third parties. charges 2 and 3, as he had armed himself with March. At the PH a special defence of coercion a weapon. The court indicated the sheriff had was allowed to be received although late; this The tender proceedings erred in directing that fear of an attack cannot described a man known only as Lee as the The ITT, for property improvement works, was provide a reasonable excuse for possessing a driving light. It was agreed to adjourn the trial issued by Renfrewshire Council. In accordance weapon. A “waiter’s friend” – a corkscrew and until July. On that date the new defence team with the European Single Procurement penknife combination – had been found by withdrew due to “a breakdown in trust” with Document (Scotland) (“ESPD”), candidates

December 2020 \ 31 Briefings

required to have a minimum annual turnover Contracting with Procast alone was “a failure by wildfire season in California, we still need a of a revised figure of £10 million for the past the council to secure an advantage”, and not a fundamental adjustment to the way we live. three years in the business area covered by the failure to assess competing bids. This article explores the role that intellectual contract. Where the candidate was a consortium property rights could play in driving the pace with no individual member meeting that Commentary of change. requirement, the council would have a discretion Authorities will be relieved at the extent to to consider whether any alternative proposals which they can exercise discretion without What IP is relevant? could be considered equivalent. The ITT further breaching the transparency requirements, The intellectual property system is designed to stated that where the tenderer was to be a even in relation to contradictions in their own stimulate and disseminate the new technologies consortium, the contract would be entered into ITT. It is notable that in this case the that could mitigate damage to the with the lead organisation and all members council’s argument (that the climate. Patent protection in of the consortium, who would be jointly and inclusion of the clause particular plays a crucial severally liable. requiring the contract to role in the development A contract was entered into with one tenderer, be entered into with all of climate solutions, Procast. Procast had originally stated it was consortium members and is often more not seeking to rely on the capacities of third was a mistake), was heavily scrutinised parties, but had submitted three ESPDs for itself accepted. Bidders, than other IP rights. and two other entities. In response to a council however, may be However, typically query Procast stated that it was tendering as a concerned at the technologies attract consortium on the “‘Lead Provider’ model”, with extra difficulties a web of multiple itself as lead. Requested for evidence of annual in attempting to IP protections turnover, Procast responded that the combined foresee exactly how and require a annual turnover of the three companies met authorities will reach range of licensing the requirement, providing unaudited financial their decisions. If the arrangements in statements. ITT wording cannot be order to be effectively relied on, what certainty do commercialised. The claim for damages bidders have? Trade secrets are AC Whyte claimed the council breached its At least in this case, the fundamental to innovative obligation to act in a transparent manner (reg usual procurement procedure companies, large or small, in all 19(1)) because: (1) it failed to enquire into any took place in that it was sectors. For companies without inter-company trading between Procast and publicly advertised and the resources for a large IP the other entities, and therefore did not have bidders had a chance to (a) bid portfolio, trade secrets allow sufficient information to satisfy itself regarding and (b) challenge the tender them to remain competitive. the ITT requirement; (2) the award of the where they considered it had Certification and collective contract to Procast was not made in accordance not been made in accordance marks are already proving with the ITT; and (3) at the time of the award, the with the procurement regulations. This popular with ethical consumers. Marks can be council did not possess information essential for was, of course, all pre-pandemic. used to highlight products which emit high and a proper decision to be made. Since the start of the pandemic, much low levels of carbon during production, or which The pursuer further argued that, in breach of has been made in relation to the award of have been produced locally and do not attract the ITT, the contract had been entered into with large so-called secret contracts to relatively large carbon footprints. Procast on its own, and that this had happened unknown entities, often with little to no although no single member of the consortium obvious experience in the public sector Why are patents key? met the turnover requirement on its own. and, occasionally, with background links The patenting system is well designed for Lord Tyre granted absolvitor in favour of to politicians (labelled the “chumocracy” encouraging development of advanced the council. approach), taking advantage of the urgency technologies. In relation to inter-company trading, Lord provision in the regulations. Practitioners and To obtain patent protection for innovative Tyre considered that, as the ITT did not provide the public alike will be waiting with interest to works, inventors must satisfy that their creation for any adjustment of turnover, there was no see the outcome of the seemingly inevitable is novel, involves a technological step forward obligation on the council to investigate the judicial review applications. in their field and has an industrial application. matter and it could not be manifest error As part of the application, the inventor agrees to to fail to make any inquiry/adjustment for disclose their work publicly and they must be such trading. able to describe how a skilled reader would be He further held that the authority had a Intellectual able to carry out the invention in practice. This discretion in terms of the ITT to award the Property means that when the exclusive rights period contract to a tenderer who did not meet expires, the information is disseminated across ALISON BRYCE, PARTNER, the turnover requirement. In any event, the DENTONS UK & society and the technology can become more question as to that discretion did not arise as MIDDLE EAST LLP widely used. the council was entitled to rely on Procast’s The patent system is fundamentally self-certification that the requirement was met. Though the current pandemic has led to record underpinned by the idea of balancing interests: The council was also entitled, if it so wished, lows in greenhouse gas emissions, we have the private interests of those investing in and to regard the information and documentation witnessed a global rise this year in the dramatic generating new technologies (through a period supplied by Procast as sufficient and as an effects of climate change. From increased local of exclusivity) against the broader societal “alternative proposal” in terms of the ITT. flooding in the UK to a longer and more deadly interest in disseminating the knowledge.

32 / December 2020 Environmental considerations are included IN FOCUS in this balancing. National laws give patent offices the power to exclude technologies that would cause damage to the environment if ...the point is to change it commercially exploited, a key overlap between IP law and environmental policy. Brian Dempsey’s monthly survey of legal-related consultations Offending sectors Though it is likely that the patenting system will Single-use plastic Child protection scot/environmental-quality/ play a key role in encouraging the development The Scottish Government The current National cleaner-air-for-scotland-2/ of green technologies, it has also served as an proposes the introduction Guidance for Child Protection Respond by 22 January via aid to some of the worst offending industries. of market restrictions which in Scotland, which describes the above web page. It has produced groundbreaking technology effectively amount to a ban the responsibilities and which has simultaneously advanced society on the most commonly expectations of everyone and majorly contributed to the worsening of Employment littered single-use plastic who works with children, the greenhouse effect. The diffusion of energy injuries items found on European young people and their technologies which fuelled the industrial Mark Griffin MSP seeks beaches. See consult.gov. families, was published revolution, agricultural equipment which cleared in 2014. The Government views on his proposed scot/zero-waste-delivery/ much of our rainforests, and new industrial seeks views on draft revised Scottish Employment introducing-market- chemicals which polluted our atmosphere, all guidance. See consult. Injuries Advisory Council Bill. evidences this. In order to reverse this impact, restrictions-on-single-use- gov.scot/child-protection/ The Council would shape, we require this same framework to produce the plas/ consultation-on-the-revised- inform and scrutinise social necessary green technologies. Respond by 4 January via national-guidance/ security payments available the above web page. Encouraging innovation, or Respond by 17 January via to people injured in the barrier to dissemination? the above web page. course of their employment. It is commonly maintained that IP rights provide Early medical See www.parliament.scot/ incentives to create and commercialise new abortion Post-Brexit parliamentarybusiness/ inventions and are the driving force behind Due to the COVID-19 financial Bills/116429.aspx technological advancements. The exclusivity pandemic, in March 2020 regulation Respond by 1 February via period afforded to rights holders enables the Government put in place HM Treasury is consulting on the above web page. them to commercialise the product and recoup measures allowing eligible what reforms are necessary the often costly investment of research and women to take both pills to the UK regulatory …. and finally development. This is particularly the case with required for an early medical framework for financial bio-pharmaceutical companies. abortion in their own homes services in the post-Brexit As noted last month, the Yet in the case of green technologies, speed after a telephone or video world. See www.gov.uk/ Government and COSLA and flexibility are essential. The patent system, consultation with a doctor government/consultations/ seek views on their “Digital especially, is not built for speed: applications or nurse, without an initial future-regulatory- strategy for Scotland” (see are published 18 months after filing, and in-person appointment at framework-frf-review- consult.gov.scot/digital- granted patents expire after 20 years. This is a a hospital or clinic. It now consultation directorate/digital-strategy- significant speed bump in the road of research, seeks views on whether to Respond by 19 January via for-scotland/ and respond when time is often of the essence. In this the above web page. by 23 December); and the regard we are starting to see policy makers continue this arrangement Keeper of the Registers push for IP reform in specific environmentally once there is no longer a impactful sectors, with a particular emphasis on significant risk of COVID-19 Cleaner air seeks views on intended encouraging industry and national collaboration transmission. See consult. The Government’s first increases in fees (see and sharing. gov.scot/population-health/ Cleaner Air for Scotland consult.gov.scot/registers- early-medical-abortion-at- strategy was published in of-scotland/registers-of- Drive for collaboration home/ 2015. Views are sought on scotland-fee-review-2020/ Events like COP26 in Glasgow next year are an Respond by 5 January via the content of the second and respond by 24 example of a modern push for collaboration in the above web page. iteration. See consult.gov. December). this field. COP26 will bring parties together to accelerate action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change, and will likely spell an already free of enforceable patent rights. Yet to increase collaboration, to enable speedier increased global scrutiny on IP rights and on a lack of patenting restrictions alone doesn’t diffusion of green technologies across collaborative rights frameworks. always result in equitable access to new the world. In order to alleviate the impact of technologies. The partnership or involvement Ultimately the commercial exploitation of modern society on the environment, global of the inventors is also required. Valuable intellectual property will play a defining role in IP frameworks will be required to work knowhow and background IP protections will the fight against climate change. We very much collaboratively. Yet this will not come without simultaneously need to be shared in order expect this focus on collaboration to be a key challenges. For example, many patenting for the collaboration to be effective. Events challenge for the legal profession in the technologies in developing countries are like COP26 are likely to encourage legislators next few years.

December 2020 \ 33 Briefings

Owen Sweeney from interfering with their use The Inner House found that having regard to Agriculture and possession of the land. The sheriff principal the whole picture, the liquidator was entitled to upheld that declarator but recalled the interdict. determine that success was far from assured ADÈLE NICOL, PARTNER, ANDERSON STRATHERN LLP The Inner House subsequently held that there were a challenge to be made. The costs were was an agricultural tenancy. substantial, the funding of such challenge It is safe to say that part 2 of the Agricultural The winding-up petition was based on an problematic and the financial return in doubt. Holdings (Scotland) Act 2003 (Tenant’s Right unsatisfied decree for expenses in an action The liquidator’s decision to uphold the notice to Buy Land) caused some consternation challenging a transfer of shares in WLL. In a and proceed with a sale to Urquhart could among agricultural landlords at the time of its third action, unresolved at the time of winding not be characterised as “utterly unreasonable introduction. In practice, I am unsure to what up, Urquhart sought rectification of WLL’s and absurd”. extent the provisions have been used. North register of members to list her as a member. The case was complicated by the Berwick Trust v Miller SLC/220/06 touched Right to buy notices had been registered by relationship between the parties, the obliquely on the issue of right to buy: the Urquhart or her predecessors in 2006, 2011 and ownership of the shares, the fact that the landlord argued (unsuccessfully) that the 2016. The liquidator did not challenge the last actions of a party who held shares in the existence of the right was preventing it serving notice, and agreed to sell the land to Urquhart company resulted in the landlord going into an incontestable notice to quit. in terms of part 2 of the 2003 Act. In his note liquidation, and that party also being the I know of only one case where a purchase has Joseph Sweeney argued that the liquidator party entitled to exercise the right to buy. The been carried through using the provisions. There should challenge this notice. challenge to the registration of the right might will have been many instances of farms being At first instance Lady Wolffe found that the well have been more robustly pursued without sold to, or deals being done to buy out, the sitting liquidator’s decision that a challenge to the the complications of the liquidation. tenant but in practice I think there have been few notice was not in the interests of the general situations where the actual provisions have been body of creditors, was reasonable, taken in used. However, they were considered by the good faith and one open to him in the Inner House in Sweeney, Noters [2020] CSIH 65. exercise of his powers. Sport The case concerned a longrunning feud The liquidator made his decision on the BRUCE CALDOW, PARTNER, between the Sweeney and Urquhart families. following factors: HARPER MACLEOD LLP It centred on land in Inverness owned by a (1) The Keeper would not generally rescind company, West Larkin Ltd (WLL), which after a notice of interest without a court order. As with many sectors and industries, the a chequered history was in liquidation. It (2) The outcome of any challenge employment of sports people and people was formerly owned by the Sweeneys. The was uncertain. working in sport can have many nuances and Urquharts claimed they had occupied the land as (3) The parties’ history suggested that any differences born of the practices, approaches agricultural tenants since 1990. The Sweeneys court proceedings would be robustly defended. and attitudes prevalent and that have been contended that the lease had terminated or (4) The cost of any litigation would established over time. High performance athletes was no longer an agricultural tenancy. If the be significant. supported to meet their ambitions through UK Urquharts were agricultural tenants they would (5) The land was only valued at £27,000. Sport-administered grant funding are neither be entitled, if the land were offered for sale, to Sweeney’s note submitted that Lady Wolffe employees nor workers (see, e.g. Varnish v British purchase it for about £28,000. The Sweeneys had applied the wrong tests, and failed to Cycling UKEAT/0022/20), while both touring and believed the open market value with vacant consider the strength of the case and an offer club-attached professional golfers are typically possession would exceed £1 million. of funding from another member of the self-employed, in business in their own right. WLL’s liquidator agreed to sell the land to Sweeney family. In team sports such as rugby and football, Amanda Urquhart, who had petitioned for the whilst the contract of employment, typically winding up, under the right to buy provisions Grounds for interference? negotiated for a fixed term and with the at agricultural value. Not surprisingly, the The Inner House considered the question of involvement of an agent and solicitor on Sweeneys opposed this disposal at what they the liquidator’s responsibility rather than the either side of the bargain, is sacrosanct and saw as a knockdown price. validity of the right to buy. A court would only all important, a series of international and Joseph Sweeney sought an order that the interfere if a liquidator’s decision was “so utterly domestic regulatory rules and considerations liquidator challenge Urquhart’s right to buy unreasonable and absurd that no reasonable add to the usual mix of commercial and the land, and rectification so that his name was man would have done it”. Given the history, the taxation considerations. listed in WLL’s registers of members. Separately animosity between the parties and the value of Before the seminal case of Bosman, player Donalda Sweeney sought assignation of a debt the asset, that test had not been met. registration rules in football were all-important, from Urquhart, who opposed both notes. Although it was maintained for Sweeney dealing not with the contract, but the registration After debate, Lady Wolffe dismissed Joseph that there was a strong argument that the of the player. The FIFA Regulations on the Sweeney’s note and granted Donalda Sweeney’s. agricultural tenancy had been abandoned, the Status and Transfer of Players (RSTP) have The unsuccessful party in each action appealed. liquidator stated that Urquhart would vigorously long overlaid the relationship between player contest any such challenge on the bases that and club, providing a system of regulation that To challenge or not? (a) given the earlier Inner House decision, offers greater protection to club and player alike, The history is complicated, but briefly strong evidence would be required to show particularly when cross-border or international Urquhart’s contention was that the land had that agricultural activities had been abandoned, movement occurs. With the ability to regulate been leased to her parents since October 1990 neglect not being sufficient (Wetherall v Smith and resolve disputes such as Andrew Webster’s for 25 years at a rent of £1,250 per annum. In [1980] 1 WLR 1290); (b) the registration of the acrimonious departure from Hearts for Wigan, an action by the Urquharts in 2001, the sheriff three notices had not been queried; (c) Urquhart FIFA and sport-specific rules have provided granted summary decree declaring that they was WLL’s only substantial creditor and did not stability in a world in which instability of had an agricultural tenancy and interdicted wish a challenge to be made. employment and player movement are the norm.

34 / December 2020 equality laws, will secure greater employment in respect of loss, inconvenience and Clarity for coaches protection for women in football, at a time when distress arising from the misconduct. Now, recognising that football coaches are the game is experiencing unprecedented growth important in the football community and play a and exposure internationally and in Scotland. Alan Niall Macpherson vital role in the development of the game, FIFA Being part of a sport-specific regulatory Mickel (s 42ZA appeal) has determined that the hitherto less regulated regime, sport-specific dispute resolution and status and employment relationship of coaches sanctions should also help to enforce and An appeal was made under s 42ZA(9) should be addressed, in a revised RSTP, bringing police the enforcement of these rules, avenues of the Solicitors (Scotland) Act 1980 by a “minimum labour framework” for coaches. This, of enforcement often being difficult and Alan Niall Macpherson Mickel against the FIFA intends, will provide a “higher degree of legal challenging when using domestic laws alone. determination by the Council of the Law certainty” in the coach’s employment relationship It was not long ago that the tennis star Society of Scotland in respect of a decision with a club or association, and allow “the relevant Serena Williams expressed her concern for to uphold a complaint of unsatisfactory FIFA bodies to decide employment-related female sports people being hindered by the professional conduct made by David Turner, disputes involving coaches”. commercial view taken by sponsors and advocate (the second respondent). The first The new rules will define a “coach” as stakeholders of pregnancy and maternity leave. respondents censured the appellant and someone performing duties related to the Measures such as FIFA’s new sport-specific directed him to pay £2,750 compensation. training and selection of football players, in regulations should prompt more sports bodies The second respondent did not enter the addition to tactical aspects. Although only and stakeholders to consider what existing appeal process. The Tribunal quashed the applicable to employment relationships of “an imbalances are faced and what can be done to determination, the censure accompanying international dimension” between coaches and address these, in their individual sports. the determination, and the direction. professional clubs or associations (meaning The appellant was a partner in Hamilton differing national status of the parties) as with Burns between 2002 and 2014, and a the body of the RSTP and the rules on players, director of Hamilton Burns WS Ltd between associations may look to cascade principles to Scottish Solicitors’ 1 November 2014 and 29 December 2015. domestic coaching relationships. Discipline Tribunal He retired and became a consultant with The rules will provide clarity on the form the company between 30 December 2015 of employment contracts (listing essential WWW.SSDT.ORG.UK and 23 May 2017. Hamilton Burns WS Ltd elements that must be provided for); provisions instructed Edinburgh agents to deal with for contractual stability (mirroring those in Steven Lilly a case. The Edinburgh agents instructed place for players, rules will govern respecting A complaint was made by the Council of counsel. Counsel’s fee note was issued on the contract, stopping tapping up and providing the Law Society of Scotland against Steven 14 December 2015, two weeks before the consequences for unilateral termination); Lilly, solicitor, Wishaw (formerly Kilwinning). appellant retired. Reminders were sent to address “overdue payables” due to coaches and The Tribunal found the respondent guilty of the company. The appellant responded ensure remuneration is paid promptly (a key professional misconduct in respect that he to two of these. The second respondent’s tool to reinforce contractual stability between breached his duty to act honestly and with complaint was that the appellant failed players and clubs); and for FIFA’s decision- integrity and breached rules B1.2, B1.14.1 and to settle his fee and failed to provide a making bodies to have jurisdiction over disputes B6.12.1 of the Practice Rules. The Tribunal satisfactory explanation for not paying. including enforcement mechanisms. ordered that the name of the respondent be The Tribunal found that in terms of the FIFA’s council is expected to formally approve struck off the Roll of Solicitors in Scotland. scheme, the “instructing solicitor” was and adopt these reforms at its December 2020 In the full knowledge that he had not lodged Hamilton Burns WS Ltd, not the appellant. meeting. Clubs, coaches and their advisers will a petition to the nobile officium, the respondent There was no professional responsibility need to keep pace with these developments, told a client a petition had been lodged, that on the appellant to pay the fee in these in addition to likely changes to the immigration there was to be a hearing on interim liberation circumstances, or to make arrangements regime underpinning movement of coaches and then passed the same information on to a to ensure it was paid. The Tribunal across different countries. colleague for that to be transmitted to the client. considered cases where it had found This was dishonest. professional misconduct when solicitors Protections for women In a separate case, the respondent provided had failed to pay counsel’s fees. It noted At the same time, FIFA is also to adopt global his bank details instead of the firm’s to a that in all these cases, the solicitors were minimum standards for female players, client. The Tribunal accepted the respondent’s sole practitioners. They had a personal particularly regarding maternity and associated explanation that he provided the wrong details professional obligation to pay because protections. FIFA is seeking to introduce an to the client because of a genuine error. they and their firm were one and the same appropriate regulatory framework suitable to the However, this mistake was reckless. for this purpose. Conduct issues could needs of the women’s game, adopting various Thereafter, he retained the funds in the arise from non-payment of counsel’s key measures. These will include mandatory knowledge that he had no entitlement fees, particularly when principals had maternity leave (of at least 14 weeks, payable to them. This lacked integrity. responsibilities in relation to their firms. at a minimum of two thirds of the player’s The respondent’s actions constituted a However, no responsibility or obligation contracted salary); reintegration of players on serious and reprehensible departure from the arose in the particular circumstances of return and with “adequate medical and physical standards of competent and reputable solicitors this case. If the appellant was under a support”; and with the requirement that no and he was guilty of professional misconduct. duty to make an explanation to Faculty female player should ever suffer a disadvantage He was a danger to the public and a risk to the Services Ltd, the response he gave was as a result of becoming pregnant. reputation of the profession. The only suitable satisfactory. A competent and reputable It is hoped that these measures, which will disposal was strike off. The Tribunal awarded solicitor could have acted in the same way supplement and strengthen existing domestic £1,000 compensation to a secondary complainer as the appellant.

December 2020 \ 35 Briefings Only “part of” the story

Why do more solicitors not challenge the offer of a “part of” legal report on the purchase of a new build, when it would not alert them to part of the plot having already been sold off?

agreed to provide us with all applications of searches out of that product rather than Property pending against the site which, together with our having to start from scratch each time. examination on ScotLIS of all break-offs already They could then presumably take a view on WILLIAM MACRAE, MEMBER, LIDDLE & ANDERSON LLP registered, could allow us to be reasonably sure that. However, off the cuff it did not appear that we had adequately assured ourselves that this was attractive to them as no one else I would like to raise what I believe to be a risk the property had not been sold off in part or seems to be concerned. in conveyancing practice which appears to be whole to another person before our registered I wrote to the Law Society of Scotland’s overlooked. advance notice, which was also going to show Conveyancing Committee, which responded: “As When a new build is purchased from a volume on the search. I spent just under an hour on the a generality, a ‘part of’ search in the context of a builder, it is often the case that the builder will phone with them going over 315 previous entries residential development [is] likely to be standard not provide a legal report, but rather insist that to ensure those applications could be found practice, however [they are] unable to provide the purchasing agent obtain a legal report for elsewhere on the development plan. advice on what was required in an individual themselves. When this occurs, the searchers as However, the foregoing effectively hinged on circumstance and therefore it [is] always a a preference offer a “part of” legal report. My a pre-agreed development plan to assure us matter of the solicitor’s professional judgment firm always refuses this, as I understand that a that, for example, the next door plot did not have as to what they believe is necessary in each and “part of” legal report does not detail break-off a plan which overlapped with our plot, and is every transaction.” writs from the subjects being searched. In other clearly not a proper solution to the issue. Should a builder make a mistake/commit words, that limited legal report would not alert fraud in double conveying the same plot, or you to an instance where either a part, or all of What if...? more likely make a mistake in their plot plans the plot you are buying has already been sold When I discussed this issue with senior and sell off a part of “your” plot to a previously off to someone else. individuals at our searchers, I was amazed to purchasing neighbour, and you obtain a My firm’s view is that the most basic reason find that my firm was, in their words, “the only “part of” search, you will only find out when for the search is to check that the seller still firm in Scotland that are their clients” who have your application gets bounced. Depending owns the subjects at the time of the search. As a this issue and who do not accept a “part of” on occupation of the subjects, this will either “part of” search does not show that, it cannot be search for new build plots. As I understand that be hard to sort out, or in the worst cases an adequate search. they are a market leader in providing searches, impossible. No doubt the lender and that leads me to understand that the vast purchaser will then turn back to the Plan-based assurance majority of Scottish conveyancers are either (a) conveyancer for recompense. My firm recently acted in the purchase of not fully appreciating the fatal inadequacies of a house in a 633-house development in the “part of” legal report, or (b) know the issue Basic protection Edinburgh. Our searchers quoted over £400 for and are “winging it” in the hope that the seller Given the ever growing pressure we are a full search and estimated it would take around hasn’t sold off the plot already and has not under as conveyancers, I am strongly of five hours to complete. As we had asked for it made an error in their deed plans resulting in an the view that we should seek to restrict the for the next day, they would not be able to do overlap with a previously sold plot. potential for claims on us. There seem to this either in time, or at a price that would be I tried to explore with our searchers the me to be two obvious ways of sorting this acceptable to ourselves or our client. possibility of them keeping a running ongoing with little issue: In that particular case a compromise was search on a big site such as this, and then (1) it becomes a universal norm that the reached, as luckily the site had a development providing a product to buying agents of a solicitor acting for a builder in a volume plan previously approved by the Keeper, proper search over the property which development undertakes in their standard to which all dispositions referred was effectively an update, as they have missive to supply a continuation of a full legal (without a separate and potentially a sizeable share of the Scottish report, no doubt also passing the cost to the erroneous plan being attached to searching market and will purchaser; or each disposition). statistically get a (2) conveyancers lobby their search The searcher good number providers to run a main search for such sites themselves, and sell at a reasonable price an update when requested. Why should conveyancers have to choose either to pay an extraordinary amount, or to risk a potentially large claim, to cover arguably the most basic point in the conveyancing process – ensuring the seller owns what they are seeking to sell?

36 / December 2020 Barony Register in new hands Alastair Shepherd succeeds Alistair Rennie as Custodian

register will only accept applications from solicitors Property registered to practise in Scotland. ALISTAIR RENNIE The Scottish Barony Register has become a AND ALASTAIR SHEPHERD recognised and trusted part of the process of selling/ transferring baronial dignities. Purchasing solicitors The Scottish Barony Register opened for business invariably require a letter of comfort from the on 28 November 2004. It was created to fill an Custodian regarding any transactions that have been information black hole as regards ownership of the registered since the appointed day. As far as it is dignities of feudal baronies which resulted from the possible to tell, every transfer of a dignity occurring provisions of s 63 of the Abolition of Feudal Tenure etc since that date has led to an application to register (Scotland) Act 2000 which came into effect on that the acquirer’s claim of entitlement to the dignity in the date, “the appointed day”. register. At the time of writing, the register contains It was decided by some parties involved in the details of transfer of 170 different dignities, some of market that the answer was to create a private which have been transferred more than once. register in which transfers of the right to a baronial dignity could be registered. A search in such a register Change in Custodian would reveal any transfer of a dignity post-appointed The trust placed in the register by the legal profession day. After a feasibility study as to how this could relies to a great extent on the experience and work, the Scottish Barony Register was established knowledge of the Custodian. The understanding as a company limited by guarantee in time to be in entered into with the Lord Lyon was contingent on the operation at the appointed day. Alistair Rennie, the Lord Lyon recognising that the incumbent of the post then recently retired Deputy Keeper of the Registers of Custodian was a “man of skill”. That arrangement of Scotland, was appointed Custodian. still subsists today. Alistair Rennie has decided it is time to pass on the Rationale for establishing the register baton to a new Custodian. After careful consideration Some years ago an understanding was reached with by the directors of the register, the new Custodian the then Lord Lyon that, when he was dealing with chosen is Alastair Shepherd, currently a partner in a petition for arms based on ownership of a named Coulters Legal LLP, but due to retire from private baronial dignity, he could rely on certification from the practice in April 2021, after 40 years as a solicitor with Custodian that the barony existed and that from the Brodies WS, Henderson & Jackson WS (and their many evidence submitted to the Custodian the petitioner had successor firms), and latterly with Coulters. He has a title to the dignity thereof. been involved with the sale and purchase of barony It was obvious from the start that no absolute titles since qualifying in 1981; he is a Writer to the guarantee could be given by the register as to the Signet and notary public. validity of any claim, because there would be a From 1 December 2020 the new Custodian can be number of things that the Custodian could not know. contacted at 1 Monkrigg Steading, Haddington EH41 Equally obviously, there could be no compulsion to 4LB, or [email protected]. A new register, so why would people do so? The answer lay website is being set up at www.scottishbaronyregister. in setting terms and conditions as regards evidence org, where in due course all appropriate forms and a that would make it difficult for any fraudster to comply note of fees charged will be published. with, and establishing a rigorous examination process Alastair Shepherd does not intend to make to ascertain, as far as possible, that the evidence any immediate changes to the way in which the submitted is credible. As a further protection, the register operates.

December 2020 \ 37 Briefings Use your experience

Get a varied experience at the start and develop your skills, and you never know where that may take you, says this senior local authority lawyer who has moved into tribunal work

in many new areas of law as they are protected and they get a fair coping with staff shortages, as developed, such as adults with and just hearing. well as emergency legislation. incapacity and the Mental Health We have all been missing face- Act 2003. This led to me applying Is it important for in-house to-face contact with colleagues to and joining the Mental Health solicitors to look beyond and clients, and although many Tribunal as a legal convener in their day job? might have welcomed some more 2005, and later to joining the I absolutely encourage all solicitors homeworking, no one I have Housing & Property Tribunal, both to look for opportunities that help spoken to has wished to work positions which complemented my them develop their knowledge completely from home and many in-house work and developed my and skills in any area they are I fear are struggling as the knowledge and skills. interested in. pandemic has gone on. I got involved early on with a You’ve recently retired from group called the Social Work Legal Do you have any thoughts South Lanarkshire Council. Officers Group, which provided an on how lawyers build good What’s your current focus? excellent source of information and mental health, increase I wanted to spend some more networking, and became chair. It resilience and manage time, when not on tribunal work, became part of the larger Society stress successfully? travelling and enjoying life. I picked of Local Authority Lawyers and Given what I have said above, In-house the wrong year for that, so have Administrators (SOLAR); I eventually I think building networks or concentrated on my tribunal work joined the executive committee and reconnecting with existing JAN TODD, FORMER LEGAL SERVICES ADVISER, SOUTH which I find immensely satisfying. then became President for nearly networks is essential. Your teams LANARKSHIRE COUNCIL The Mental Health Tribunals carried two years, an amazing privilege and need regular time together online, on throughout lockdown and pleasure which again developed with maybe some social activities Tell us about your the Housing & Property Tribunal me in ways I never thought I would. just to keep morale up. We might career to date. restarted hearings in July, with I am also a member of the Law also try and ensure that meetings I have been lucky to have enjoyed hearings mostly conducted from Society of Scotland’s Mental Health are not arranged over lunchtime, a diverse and interesting career. home via telephone conference & Disability Committee, which has especially in winter, to allow people I started in Yuill & Kyle in Glasgow, calls. Like many lawyers, the house given me a chance to influence the chance to get outside while where I went from trainee to is my new office! proposed changes in the law. it is daylight. And can two work associate in a few years. As a I would encourage everyone colleagues get together for a walk, small firm you had to do a bit of What skills or experience to find ways to give something if they live near each other? everything, and I didn’t realise how from your local authority back to your colleagues and the much responsibility I had until role have helped you here? wider public where you can. No Have you seen any I left when I had a six-month-old Obviously working closely with opportunity or experience is a positives coming out baby and was looking for a part social work services provided wasted opportunity. of the current crisis? time position. I found a job share a great deal of experience that The pandemic has made all position with Strathclyde Regional has helped with the Mental What impact do you think organisations rethink how agile Council in its conveyancing team. Health Tribunal, including an COVID-19 has had on local working and homeworking can be I found that I loved working in understanding of the services authority legal teams? part of the future. It has shown the public sector. I met some great which support people with mental This has been an incredibly hard that we can perform most services people and learned one of the disorder and the benefits and year for everyone, personally remotely; it may not be optimal key lessons of working in-house limitations of alternative legislative and professionally. Homeworking but by using videoconferencing, – that everyone is a team player. regimes. My work with housing puts an extra strain on the IT we don’t need to all be in person at Another lesson was that in local was relevant to the Housing & capability of most organisations, every meeting. We can offer more government nothing stays still for Property Tribunal, particularly time and delays in downloading or flexible work patterns that suit long. After three years I moved to on an internal homeless appeals internet reliability can put a strain members of a legal team but also South Lanarkshire Council in 1996 panel. Communication, analytical on your endurance and patience! the organisation, which can save on following reorganisation, and then and leadership skills, and an ability Your work-life balance can suffer paper and travel costs by moving got the post of principal solicitor to work closely with colleagues as homeworking can lead to more to online participation in meetings. community care, which was when with different expertise also help. difficulty switching off, and even to There will be different ideals and I discovered a real passion for all I find my current role very longer hours. Discussing issues and priorities for each individual. This aspects of the law related to social diverse and fulfilling, but most of sharing problems with colleagues may take some discussion for work. I have enjoyed 24 years at all still allowing me to use the law is much less spontaneous and of each team, but if lawyers can do the council, and have been involved to ensure the rights of individuals course there have been difficulties anything, it should be to reach a

38 / December 2020 IN ASSOCIATION WITH

compromise that works for do, and have desire to help your both parties! community or the goals of the public or your organisation. What other key Be open to new areas of work: challenges face in-house you may find you are working Potential tax changes teams into 2021? in areas you never imagined If the biggest challenge wasn’t but are very suited to. Take mean it’s time to budgets before COVID-19, it time to understand your client certainly is now, and the ever departments. With mutual tightening of budgets that has respect you can achieve more talk succession been a feature of the last few together, and that takes trust years means that another and time. There has been much recent speculation as to whether an major challenge will be to keep increase in the capital gains tax rate is in the offing, and/or in-house lawyers motivated What are your thoughts changes to APR or reweighting of BPR eligibility. Rishi Sunak and to alleviate the stress from on training in-house or in will certainly be motivated to fill the fiscal gap left by the constantly facing cuts and private practice? pandemic and it is anticipated he will announce plans in 2021. reorganisation. The current In private practice I had a very The new year might therefore be a very good time for owners investment in IT may provide varied and all round experience of farms and rural estates to discuss succession planning, solutions such as prioritising which has stood me in good ensuring the best possible outcome for all involved. when you need to attend a stead. Wherever you train you Of course the greatest threat to prosperity may not indeed meeting in person. We must also should use it to get as much be changes to CGT: failure to talk openly, to discuss sensitive invest in and prioritise the mental experience as you can. You will issues about wealth and inheritance, to identify and respect wellbeing of employees. start to gain an understanding individual skills, and to agree a common purpose can all of what areas of work you like, spell disaster. How have attitudes and but time has taught me that That’s where third party professional help is invaluable. working practices in the most experiences are valuable Those of us who work in this field can have discussions with legal profession changed and skills learned in one area family members that they might feel uncomfortable having in the law since you translate to many others. with each other. Parents, for example, might find it impossible started out? to tell a child they don’t want to include their spouse in a When I started, part time was What is your most business plan. We can ask the questions no one else will, and not really an option for most unusual/amusing work that can lead to greater understanding. solicitors and now there are so experience? It pays to involve children in discussions early, to prepare many different permutations. Probably my most unusual them for choices they might one day have to face together. It should not matter whether experience came just a year It’s important to grow up with a long-term understanding of you have caring responsibilities ago as President of SOLAR. I what wealth means and the responsibilities it entails. This or not: everyone has different was asked to give a talk at an is particularly important where an estate will be inherited reasons for wanting flexible International Symposium of by the oldest child. If everyone agrees the purpose is to working and getting the right Municipal Clerks. The talk was conserve heritage and legacy, younger brothers and sisters balance can be extremely to be given after a dinner held can accept that dividing it up into equal shares isn’t an option. important for mental health. in Warwick Castle, and I found Having said that, though they might inherit a title, the Another main change in myself delivering it in a medieval oldest child may not have the right skills to protect and build attitude is recognising how hall surrounded by knights in the family assets. Being a younger child doesn’t necessarily important mental health is. armour, having just watched a rule him or her out. Most of us will be affected or mock fencing duel by two of Drawing up a written family constitution will help avoid will know someone during our them! It was both a surreal and misunderstandings and maintain focus, and that is something lives and career who can be amazing experience, and one I we do for clients regularly. But above all, communication and affected. With the right support would never have imagined my trust remain key to effective succession planning to protect and attitude you will get a highly in-house role at a Scottish local family wealth. trained and skilled member of authority would bring. staff back to work, when in the Hugo Struthers MRICS, TEP, past this could go unnoticed or Finally, what do you love Savills Head of Rural in Scotland unsupported, leading to poor doing outside the day job? outcomes. As a manager I often Currently I am doing the few had to consider how to support things you can do – Zoom calls a colleague; just being there to with friends and family, walks listen is sometimes incredibly and online yoga, and of course important and everyone can baking… If and when we can do that. I will be found catching up with family and friends I have not For more information contact What advice would you been able to see – and with all Hugo Struthers on t: 07967 555608; give lawyers who want to those nights out to celebrate e: [email protected] start a career in-house? leaving South Lanarkshire Be passionate about what you Council and SOLAR.

December 2020 \ 39 In practice Your Law Society of Scotland Council Members

SHERIFF COURT DISTRICTS SHERIFF COURT DISTRICTS SHERIFF COURT DISTRICTS OF ENGLAND & WALES OF ABERDEEN, BANFF, OF AYR, DUMFRIES, DINGWALL, DORNOCH, ELGIN, PETERHEAD & STONEHAVEN KIRKCUDBRIGHT & STRANRAER INVERNESS, KIRKWALL, LERWICK, Naomi Pryde LOCHMADDY, PORTREE, DWF LLP, Edinburgh Michael Kusznir Lauren Fowler STORNOWAY, TAIN & WICK and London Raeburn Christie Frazer Coogans Ltd, e: [email protected] Clark & Wallace, Ayr Sheekha Saha Aberdeen e: lauren.fowler@ Comhairle nan Eilean e: michael.kusznir@ frazercoogans.co.uk Siar, Stornoway SHERIFFDOM OF GLASGOW raeburns.co.uk e: s.saha@cne-siar. & STRATHKELVIN Sharon Fyall gov.uk Debbie Wilson- Pollock & McLean, Emma Crilley McCuish Thornhill Serena Sutherland DAC Beachcroft Wilson Defence, e: sharonfyall@ Drever & Heddle LLP, Scotland Banff pollockmclean.co.uk Kirkwall e: emcrilley@ e: debbie@ e: [email protected] outlook.com wilsondefence.com Austin Lafferty SHERIFF COURT DISTRICTS OF CAMPBELTOWN, DUMBARTON, SHERIFF COURT DISTRICTS Austin Lafferty Ltd DUNOON, FORT WILLIAM, OBAN OF DUNS, HADDINGTON, e: alafferty@ SHERIFF COURT DISTRICTS OF JEDBURGH, PEEBLES & SELKIRK AIRDRIE, HAMILTON & LANARK & ROTHESAY laffertylaw.com Struan Ferguson Paul Gostelow Philip Lafferty Anne Macdonald Clyde Defence Blackwood & Smith Harper Macleod Baker Gostelow Law WS, Peebles Ltd, Blantyre Lawyers Ltd, e: anne.macdonald@ Clydebank e: struan@ harpermacleod.co.uk e: pgostelow@ blackwoodsmith.com hotmail.co.uk e: plafferty@clydedefencelawyers. David Mair com Patricia Thom Catherine Monaghan Glasgow City Council Campbell Read Patricia Thom & Co, e: david.mair@ Moore & Partners, Galashiels Cumbernauld Stewart, Balfour & glasgow.gov.uk Sutherland, e: pat@patriciathom. e: cmonaghan@ co.uk Ross Yuill moorepartners.com Campbeltown The Glasgow Law e: [email protected] Practice SHERIFF COURT DISTRICT e: [email protected] SHERIFF COURT DISTRICTS OF EDINBURGH OF ALLOA, FALKIRK, SHERIFF COURT DISTRICTS LINLITHGOW & STIRLING OF CUPAR, DUNFERMLINE Christine McGregor & KIRKCALDY SHERIFF COURT DISTRICTS Ken Dalling BayWa r.e. OF GREENOCK, KILMARNOCK (Vice President) Gwen Haggerty e: christine.mcgregor@ & PAISLEY (see ex officio BSW Solicitors, baywa-re.co.uk Waqqas Ashraf members, right) Dunfermline Susan Murray Paisley Defence e: gwen@ National Health Lawyers (Scotland) John Mulholland bastensneddon.co.uk (Past President) Service Scotland Ltd, Paisley (see ex officio Roshni Joshi e: susana.murray@ e: waqqaslegal@ members, right) Martin, Johnston & nhs.net googlemail.com Socha Ltd, Susan Oswald Louisa Doole Dunfermline SKO Family Ltd McSherry Halliday, SHERIFF COURT DISTRICTS OF e: Roshni.joshi@ e: susan.oswald@ ARBROATH, DUNDEE & FORFAR Irvine mjscriminaldefencelawyers.co.uk sko-family.co.uk e: led@ Murray Etherington mcsherryhalliday.co.uk Thorntons Law, Jim Stephenson Dundee Thorley Stephenson metherington@ e: jps@ SHERIFF COURT thorntons-law.co.uk thorleystephenson.com DISTRICT OF PERTH Sheila Webster Euan Mitchell Davidson Chalmers Castle Water Ltd, Stewart Blairgowrie e: sheila.webster@ e: euan.mitchell@ dcslegal.com castlewater.co.uk

40 / December 2020 IN ASSOCIATION WITH

Ruaraidh Macniven EX OFFICIO Scottish Is financial stress Amanda Millar Government (President) Legal Service McCash & Hunter, e: [email protected] impacting your work? Perth e: president@ Sheekha Saha There’s just a couple of weeks left of 2020 and it will be easy lawscot.org.uk Comhairle nan to hope for a brighter 2021. Aside from the human cost, one Ken Dalling Eilean Siar, of the consequences of the COVID-19 pandemic has been the Stornoway (Vice President) widespread financial impact to firms and employees across Dalling Solicitors, (Co-convener, In-house Lawyers’ Committee) the country, exacerbating an issue felt by Society members Stirling regardless of years of experience. e: [email protected] e: [email protected] Kirsty Thomson John Mulholland 1 JustRight Scotland Indeed, 49% of lawyers in Scotland find their finances (Past President) cause them stress, with many citing lack of disposable funds Marshall Wilson (representative for third sector) and short term financial commitments as preventing them Law Group Ltd, 2 Falkirk Vlad Valiente building long term financial plans. This corroborates research e: [email protected] Scottish Fire & we conducted with the support of The Lawyer, where solicitors told us they do not feel they are saving enough for Christine McLintock Rescue Service Convener, Public (Co-convener, their long-term plans. That is a whole lot of financial angst Policy Committee In-house Lawyers’ out there… at what professional cost? e: christinegibb26.@ Committee) gmailcom e: vlad.valiente@ What we see is a significant impact on firms’ productivity. firescotland.gov.uk By providing guidance, support, and financial education CO-OPTED NON-SOLICITOR MEMBERS opportunities, in the form of a financial wellbeing programme, we can help transform the financial wellbeing of your Charlotte Edgar Alison Allister CMS Cameron employees. Few firms are alike, and we believe in creating a financial wellbeing programme that speaks to the specific McKenna Nabarro Susan Carter Olswang, Edinburgh (East Midlands) needs of your organisation, providing you with a toolkit to (new lawyers’ representative) help you: e: [email protected] Andrew Hinstridge Patricia Ferguson • develop a healthier, happier, and more effective workforce; Clydesdale Bank • maintain a workplace culture that you can be truly proud of; plc, Glasgow • reduce staff turnover, and support/improve your ability to (banking and finance Fiona Larg attract new talent. representative) (Inverness) e: [email protected] Put financial wellbeing at the heart of your plans for 2021. Siobhan Kahmann Derek McIntyre Covington & Burling To discuss financial wellbeing further and how Brewin (Glasgow) LLP, Brussels Dolphin can support you and your firm please contact (representative [email protected] for Scottish solicitors outside Great Britain) Catriona Maclean 1 Law Society of Scotland Employment Survey 2020 e: [email protected] (Edinburgh) 2 Financial Wellbeing for the Legal Sector report 2020 James Keegan QC Thorley Stephenson, Christine Walsh Edinburgh (Glasgow) (representative for solicitor advocates) < Download the e: jdkeegan1@msn. Graham Watson Financial Wellbeing com (Earlsferry) for the legal sector report Stephen McGowan Procurator Fiscal The value of investments can fall and you may get back less than you invested. The information contained in this document is believed Service, Edinburgh to be reliable and accurate, but without further investigation cannot e: stephen. be warranted as to accuracy or completeness. [email protected]. gov.uk Brewin Dolphin Limited is a member of the London Stock Exchange, and is authorised and regulated by the Financial Conduct Authority (Financial Services Register reference number: 124444).

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December 2020 \ 41 In practice

Dundee solicitor Legal aid spend up is future President following fee rise Legal aid spending in Scotland rose Dundee-based solicitor Murray Etherington by £7 million in 2019-20, according to is in line to become a future President of the the Scottish Legal Aid Board’s annual Law Society of Scotland. report for the year to 31 March 2020. A partner with Thorntons, he was the sole The increase, from £123.7 million nominee to be Vice President for the year to £130.8 million, reflects a rise in from 31 May 2021, and would then become demand for certain services and the President the following year. Council will general 3% increase in fees from confirm the nomination at its next meeting April 2019. in January. Criminal legal assistance First elected to Council in 2015, he expenditure increased by 3% to represents members in the Arbroath, £75.8 million, driven by a higher Dundee and Forfar constituency. He spend on solemn criminal legal aid, also serves as convener of the Society’s which rose by £2.8 million to £33.1 Insurance Committee. million. Spending on summary cases Current President, Amanda Millar, fell by more than £1 million to £24 said: “My warmest congratulations go to million. Advice and assistance and Murray on his nomination. As a member ABWOR together rose by £450,000 of Council for the past five years, and as a to £13.1 million. committee convener, Murray has shown his Overall expenditure on civil legal commitment to advocating for the profession assistance increased by £4.2 million, within his constituency and beyond. He a figure that takes account of a £2.1 knows the kind of challenges we face, and million drop in income from expenses how the Law Society has worked to support in successful cases funded by SLAB, and champion members and protect the and lower income from contributions public interest through the current crisis.” due to benefits changes that resulted Vice President Ken Dalling will become in more people being eligible without the next President on 31 May 2021. a contribution, as well as the absence of income from the Money Advice Service. Civil advice and assistance and ABWOR rose by more than £2 million; grant funding fell by SLCC catching up as almost £2 million. The report states that with accounting adjustments, the net cost of operations showed a bigger rise, COVID slows complaints from £117.1 million in 2018-19 to £139.4 million in 2019-20. he impact of COVID-19 on the complaints has halved, as has the number of SLAB’s administration costs rose work of the Scottish Legal complaints in process through the elimination by £770,000 to £12.44 million, largely Complaints Commission is of “some of the backlogs we had at the start due to higher staff and pension costs. revealed in its annual report for of our process”. Due to a digital strategy already To access the report and accounts, T 2019-20, covering the year to in place, the SLCC was able to keep working go to bit.ly/36uNLoL 30 June 2020. during lockdown. Complaint numbers dropped in the last Of complaints received, 1,013 concerned months of the year, which coincided with the first solicitors’ firms and 23 advocates, of which 553 lockdown, leading to a total for the year of 1,036, and 14 respectively (or 52%, similar to 2018-19) down from 1,326 in 2018-19 and 1,227 and 1,155 in were accepted for investigation. The mediation Any names for the two preceding years. stage saw 45 complaints closed (down from 80 in honorary membership? In his foreword, chief executive Neil Stevenson 2018-19, but a 67% success rate), the investigation Nominations for honorary membership states that “even without that assistance we stage 247 (up from 227), and the determination of the Society for awarding at the had exceeded the targets we had set internally stage 198 (up from 138). At that final stage, 14 annual general meeting in May 2021 for year end”, and with savings against planned were upheld in full, 75 in part and 112 not upheld. are now open. A nomination can only expenditure, “We now need to consider how all The SLCC’s accounts for the year, also be made for honorary membership if these factors may assist with budgeting and published, show net operating income of the nominee has ceased to practise planning for next year”. £284,000, compared with £5,000 the previous as a solicitor. Nomination forms are Complaints closed at all stages fell from 1,549 year, and an increase in reserves from £393,000 available from David Cullen, registrar to 1,402, and the number open at the year end to £659,000. The average number of staff at [email protected] was down from 685 to 436. The year also marked employed was 59, down from 61. The deadline for all the end of the SLCC’s four year strategy, over The annual report can be found at nomination forms is 1700 which, it reports, the average “journey time” for bit.ly/3quNwwa and the accounts at bit.ly/3tztoL7. on Friday 29 January 2021.

42 / December 2020 PUBLIC POLICY HIGHLIGHTS ACCREDITED SPECIALISTS

Child law The Society’s policy committees of the Society’s amendments in which clarification as to how STEPHANIE NICOLE SMITH, analyse and respond to promoted during committee stage. the rules apply in the specific SKO Family Ltd (accredited 17 proposed changes in the law. However, due to subsequent context of AI is necessary, the November 2020). Key areas are highlighted below. opposition amendments, the bill fundamental principles are Family law For more information see was restructured, removing the not affected. SARAH ANN LILLEY, Brodies www.lawscot.org.uk/research-and- opportunity for those amendments. LLP (accredited 17 November policy/ The bill will now return to the Coronavirus guidance 2020). Commons and into the “ping pong” The Scottish Government has Re-accredited: ASHLEY Aligning with EU law process, where Lords amendments published a large amount of MARIE SIMPSON, Patience The UK Withdrawal from the may be rejected by the Commons guidance on COVID-19, including & Buchan (accredited 23 European Union (Continuity) and vice versa. a number of guides specifically November 2015). (Scotland) Bill, which completed aimed at different sectors. It issued Intellectual property law stage 2 in the Scottish Parliament AI and intellectual property a survey requesting feedback from LYNN RICHMOND, BTO on 25 November, aims to continue The Intellectual Property key stakeholders who rely on Solicitors LLP (accredited 17 to align Scottish law with EU law Committee responded to an this guidance, to help identify any November 2020). after 31 December 2020. The Intellectual Property Office issues and gaps. Personal injury law Society’s Environment Law and (IPO) consultation on artificial The Criminal Law Committee LAURA JANE McGEE, Newlaw Constitutional Law Committees intelligence (AI) and IP. responded to highlight the need Scotland LLP (accredited 17 proposed amendments to the bill. In preparing its response, the for guidance in the context of November 2020). The former dealt among other committee held a stakeholder criminal law, and for it to be things with potentially overlapping round table, inviting participants produced contemporaneously Planning law functions of different public from industry and academia with developments in the law. Re-accredited: ELAINE bodies; the latter’s amendments with a particular interest in Individuals and businesses should FARQUHARSON-BLACK, helped prompt consideration AI and machine learning to not be subject to criminal law Brodies LLP (accredited 6 of issues such as delegation of discuss pertinent issues with penalties, including fixed penalties, November 2000). functions to public bodies, the IP law specialists. The breadth without understanding exactly criteria for Scottish ministers of expertise from a variety of IP how and why they have breached when using their powers to make disciplines allowed the committee the law. OBITUARIES regulations to keep pace with to identify and test the core JAMES DOHERTY, Stirling EU law, and ensuring sufficient themes set out below across a Review of CGT On 8 March 2020, James parliamentary scrutiny. range of industries. The Office of Tax Simplification Doherty, employee of the The response expressed issued a consultation seeking City of Edinburgh Council, UK Internal Market Bill support for the IPO’s objective in views on capital gains tax, Edinburgh. The Constitutional Law Committee ensuring that IP rewards people specifically the aspects that AGE: 48 issued a briefing in advance for creativity and innovation are particularly complex and ADMITTED: 1997 of the bill’s second reading and promoting the value of a hard to get right, and asked for in the House of Lords and modern and effective IP regime in suggestions for improvements. SHAUN ROBERT suggested amendments ahead supporting the proper functioning The Tax Law Committee MACKINTOSH, Edinburgh of the committee stage. At that of an innovative economy. submitted a wide ranging On 2 October 2020, Shaun stage, part 5 of the bill was The committee was strongly response covering issues such Robert Mackintosh, formerly significantly amended to remove of the view that overall, the as taxpayer awareness of liabilities, partner of the firm Peterkins, the clauses which contravened existing IP frameworks adequately the strict application of time Aberdeen and latterly international law and the cater for AI. This was a consistent limits on disposals following consultant of the firm Leslie & Withdrawal Agreement. During theme in the round table matrimonial separation, and reliefs Co, SSC, Edinburgh. report stage, the Government discussion across all areas of available to business owners. AGE: 53 accepted the premise of many IP: while there are some areas ADMITTED: 2002 SUSAN ELSIE MACKESSACK, Glenrothes On 29 October 2020, Susan Elsie Mackessack, formerly employee of Fife Council, Pressure continues for legal aid rise Glenrothes. The Society is continuing to press the Scottish Her remarks followed protest action by members AGE: 60 Government for action on legal aid rates, following of the Edinburgh and Glasgow Bar Associations ADMITTED: 1984 a massively disappointing response to pleas for over the custody court on the St Andrew’s Day DENIS CONWAY LONEY urgent support for the sector. holiday, and an open letter in the Herald by Stuart (retired solicitor), Glasgow A letter late last month from Community Safety Murray, President of the Aberdeen Bar Association. On 15 November 2020, Denis Minister Ash Denham, offered 50% support for The Society’s Legal Aid co-convener Ian Moir has Conway Loney, formerly sole up to 40 traineeship places, but on fees extra said solicitors have told him how “desperate” and partner of the firm DC Loney, money only for s 76 guilty pleas in solemn cases – “gutted” they felt at the response. As the Journal Glasgow. previously agreed in principle in any event. Society went to press, Justice Secretary Humza Yousaf AGE: 89 President Amanda Millar accused the Government was himself meeting the Society and the three bar ADMITTED: 1954 of taking solicitors’ professionalism for granted, associations, and tweeted afterwards that they put adding: “There is still a chance for the Government their points “very effectively & with great passion to act, but it needs to happen quickly.” for the work you do”. Further engagement follows.

December 2020 \ 43 In practice

WORD OF GOLD

Works of friction Dissent is the lifeblood of all great businesses – but blow up too many bridges, and nobody gets anywhere, as Stephen Gold warns

balding, middle-aged man to necessary confrontation, and settling for Culture war or beneficial divergence? walks away from 10 Downing same-old, same-old. Do colleagues truly put the We are encouraged to see those with whom Street carrying a cardboard firm before self-interest? Do they think of clients we disagree as “the enemy”, and society as A box full of his personal as belonging to them or the firm? When did they being embroiled in a culture war. Hardly a possessions. Critics note that last refer you a client, or take an interest in your day goes by without people being cancelled, there is no plant pot, which practice area? no-platformed, gaslighted or fired because they take as symbolic of a harsh, uncaring Conflict can be a powerful force for good. of non-conforming views. As Trevor Phillips personality. Thus ends the reign of Dominic Dissent shakes our assumptions, and forces us put it in The Times on 30 November, “Instead Cummings, the Prime Minister’s former special to consider how to do things better. Steve Jobs, of encouraging diversity, our elites are adviser. The man who predicted a “hard rain” a truly great innovator, was notorious for being becoming the enthusiastic enforcers of a would fall on the civil service has been washed endlessly demanding, always questioning, never Stalinist conformity.” In business, intolerance away. In his wake, there is much talk of “reset”, a satisfied. But he strongly encouraged challenge, of difference is toxic. It creates factions, move to a less confrontational style, infused and the constant ebb and flow of ideas. destroys trust and uses up precious energy in with goodwill, respect and positivity. The Untroubled by COVID-19, he banned his staff destructive battles for dominance. message is clear: harmony good, conflict bad. from working from home, which he believed A healthy culture starts at the top. A leader’s But hold on. Is it not the grit in the oyster stopped creative collaboration in its tracks. task is to articulate values and set ground that makes the pearl? Law firms are full of The best businesses have a culture in which rules. In truly collegiate firms, argument over smart people with strong opinions. It’s not everyone is encouraged to speak their mind, and what is best for the business and how it can be only futile, but damaging to expect them argue passionately for what they believe. improved is not just a choice, but an obligation. to be places of sunlit harmony. Successful So too is mutual respect, thoughtful language, businesses, especially those whose chief asset Rules of dissent an understanding of nuance, and willingness to is their intellectual capital, make no attempt But there are rules. The most important is accept that even where there is disagreement to avoid conflict. There is a big difference that whatever we argue for must be from the on an issue, there may be points of agreement between common purpose and grey conformity. perspective of what is best for the business as that can be used to build consensus. So though Examples are legion of riches to rags companies a whole. Where dissent is motivated primarily it may sometimes be uncomfortable, embrace where challenge to the leadership has been by personal or sectional interest, at best it is a dissent, and all the good it brings. As the strongly discouraged. As I write, the Arcadia time and energy-sapping diversion; at worst, American humourist Kin Hubbard put it, Group, led by Sir Philip Green, described as “an utterly destructive. “The fellow who agrees with everything analogue man in a digital age”, is on the point It matters, too, how we express dissent. Doing you say is either a fool, or he’s getting ready of collapse. An emperor whose life’s work was so with respect has become more difficult. On to skin you.” selling clothes has been found to have none, social media, in business, and in our personal but it seems nobody could tell him. lives, points of view are expressed in language Stephen Gold was the founder and senior that seems designed to generate more heat partner of Golds, a multi-award-winning The myth of collegiality than light. In the face of bullying or emotive law firm which grew from a sole practice Whenever I ask client firms to describe language, it is all too easy to abandon the field to become a UK leader in its sectors. He is themselves, “collegiate” often appears high up in favour of a quiet, if unhappy life. Words as now a consultant, non-exec and trusted adviser the list. True esprit de corps is a huge asset, but well as actions have consequences. Just how to leading firms nationwide and internationally. it’s always worth questioning whether what much the performance of Home Office staff has e: [email protected]; t: 0044 7968 you see is the real thing. Collegiality is often a improved as a result of being described by their 484232; w: www.stephengold.co.uk; euphemism for tolerance of mediocrity, aversion current boss as “f***ing useless” is unclear. twitter: @thewordofgold

44 / December 2020

In practice

RISK MANAGEMENT Conveyancing in the COVID era and beyond Following last month’s Lockton article on some historic causes of property-related Master Policy claims, Lindsay Ogunyemi and Emma Keil of DWF look at potential future issues with a focus on conveyancing in this COVID era and beyond

OVID-19 has shaken the legal communication and systems of supervision all Top tips world, and the tremors will designed to manage risk and ensure the client • An effective central diary system is essential, continue for some time. Vaccine receives a good service. Remote working brings particularly with WFH when physical files and hopes are high, but it is clear with it an urgent need for all office procedures papers are out of sight and possibly out of mind. C by now that even after the dust and systems to be reviewed, adapted and, • Ensure team meetings continue, even if not settles and “normal life” crucially, checked for efficiency. face-to-face, to ensure the team knows what is to resumes, the legal world will look very different. Small things matter. For example, the quality be dealt with in the coming week and deadlines Conveyancing and property services have, with of home printers or scanners can compromise (e.g. for registration or submission of offers) are the help of technology and legislative changes, the quality of annexations like plans. Scanning a not missed. continued to be provided throughout the document by low resolution scanner for a client • Studies suggest that we are much more pandemic, but there have been many logistical as to print at home, sign and re-scan at similar likely to be distracted and make errors, reading well as risk management challenges. resolution may reduce legibility of coloured information on screen as opposed to hard copy. In the professional indemnity world, boundary lines to a point that the plan is Lack of IT equipment, printers etc in the home conveyancing is largely viewed as high risk. unacceptable to the Land Register. (That is a real environment is a challenge, but continue to print Certainly, a high proportion of PI claims life example!) The lesson is to scrutinise not only title deeds or complex agreements for review, if against solicitors arise from conveyancing final technical validity, but the overall quality of at all possible. transactions. For conveyancers, the need end product. to focus on reducing and managing risk has, Lack of supervision perhaps, never been greater. Lack of supervision of employees is a regular What are the risks, and how can they factor in claims for professional negligence be managed? in property transactions. Supervision is “Remote working brings undoubtedly more difficult when employee Remote working and supervisor are not in the same room. Remote working, or working from home (WFH), with it an urgent need for Practitioners should ensure that guidelines is the new norm. When national lockdown all office procedures and on how matters are dealt with and signed off restrictions were imposed in March, many by supervisors continue to apply to WFH, and solicitors had no option but to convert their systems to be reviewed” are implemented. Communications binding kitchen/diningroom/garden shed into a makeshift on the firm, reports and certificates of title office. Eight months on, what was viewed as a should continue to be checked by partners/ temporary solution to a unique problem is a way Face-to-face meetings with clients are, senior employees, and junior colleagues should of working that is here to stay. Certainly, more largely, not possible at present. Practitioners be encouraged to ask as many questions as flexible working combining home and office looks must ensure that appropriate identity checks are they would in-office. It is important that junior likely to continue. carried out. Videoconferencing tools employees feel supported and confident in Whilst WFH can have many benefits for firms should be used, where possible. These can asking for assistance when needed. and employees, it poses additional risks. Firms also ensure there is adequate and effective Residential conveyancers are currently will need clear policies on WFH so as not to communication with clients. Now and moving experiencing a welcome boom following the dilute any risk management procedures which forward, it may be necessary to build additional easing of the restrictions, as homeowners apply when working in-office. Challenges in time into transaction timescales in order to and first time buyers seize the opportunity to maintaining an adequate client service need deal with more protracted signing and pre- move, while restrictions allow. Many firms have to be addressed. completion procedures, and amendments recruited additional staff to cope with current In a standard purchase transaction, for to the registration process. transactions. It is important that transactions example, practitioners will engage the client, take Document management and storage of title are dealt with by appropriately skilled and instructions at the outset and throughout, adjust deeds also need to be considered. It is important supervised staff, particularly during busy periods relevant documents with the other agents, review that any tasks that practitioners, working when the risk of a mistake or omission is high. and report on title, attend to completion and remotely, delegate to administration staff This risk is obviously exacerbated when people thereafter to registration of title. Pre-COVID, each working in-office are clearly communicated and are under pressure and working alone at home. of these stages is likely to have been carried out checked to mitigate the risk of documents being Here again, keep in mind that the simple in-office using established procedures, lines of lost or sent to the wrong recipient. (in the office) action of asking a question of

46 / December 2020 a more experienced colleague, or getting a to increase their activity, for example by Top tips second opinion, is not so simple with WFH. If, encouraging solicitors to open emails which • Firms should issue specific guidance on the for example, there’s a possible issue in a title could prove harmful to solicitors’ systems. use of the new online system, including who sheet, you can’t look around to see if a colleague is permitted to submit registration applications is available to chat. You can’t then just walk Lender claims and the process for those being checked and over and speak to them. They need to see the Across the globe the pandemic has caused the approved pre-submission to avoid errors document on screen, at the same time as you, loss of many lives and livelihoods. There have being made. and you then need to talk about the issue. Even been redundancies and more will potentially • Regularly review the Society’s COVID update with videoconferencing tools, remote pointing to follow when the furlough scheme ends. The page on its website for information and any a dubious boundary isn’t quite the same. unfortunate consequence is that individuals changes in guidance. The temptation for someone needing guidance may default on their mortgage repayments. to think it’s all too hard and “take a view” is real. Professional negligence claims at the instance Mental health of lenders will follow. The negative impact that the pandemic is having Top tips on mental health is unsurprising, and well • Supervision is key – at the beginning, during Top tips documented. Lack of social interaction, isolation, and at the end of a transaction. With WFH, • Firms should continue to ensure that uncertainty, worries about health and finances, regular virtual meetings are recommended, and employees are provided with training on the threat of redundancy, anxiety about a return to preferable to purely email communication. UK Finance Mortgage Lenders Handbook work following furlough, pressures of juggling • Post-completion checklists are essential and (previously and more commonly known as the family life and work – these issues are affecting should be completed and signed off before a file CML Handbook), and that they comply with its the majority of practitioners, in varying degrees. is closed. reporting requirements. Now would be a good Effective risk management extends beyond • Law firms will need to think about how they time for some refresher training. reviewing procedures, policies and processes. achieve and maintain regular contact with • Implementing a CML Handbook compliance Poor mental health can lead to many work trainees to offer support. The Law Society of checklist for each transaction may assist. Some performance issues, which in turn increase Scotland has published a set of hints and tips firms may already have this or want to design the likelihood of claims. It is important that for supervisors and managers, as well as articles their own, but the Society has produced a practitioners take care of their own mental and blogs with suggestions for employers checklist which firms may find useful: wellbeing and look out for colleagues who may (see bit.ly/36hP6ix). see bit.ly/3q6WpRX be struggling to adapt to the changes brought about by COVID-19. Fraud Legislative and procedural changes Changing working practices give fraudsters A number of legislative changes have addressed Beyond COVID opportunities to find new ways to operate. practical issues posed by the pandemic, and Conveyancers have had much to adapt to in Property professionals need to be more vigilant further guidance affecting property transactions 2020. The profession has dealt well with these than ever and alert to the risks. Remote working continues to be published. Practitioners need to challenges and it is fortunate that, now the and fewer face-to-face meetings increase the stay up to date with legislation and Government appropriate legislative and procedural changes risk of identity fraud. Fraudsters are extremely guidelines and ensure that advice given to clients are in place, services can continue to be offered innovative and will quickly exploit any is compliant. effectively. Property is an area where new law vulnerability caused by remote working. Property transaction procedures have also had and procedures are common, so practitioners are to adapt, most notably registration. Registers of used to adapting to change. Conveyancing can Top tips Scotland now operates an electronic applications be a risky business; however practitioners can • Ensure that anti-money laundering guidelines system which has proved very successful and take simple steps to reduce and manage the risks are strictly adhered to. has been heralded as a better, more secure way created by the remote and technology-reliant • Bank account details should not be shared by of submitting applications. However, as with any ways of working that have become essential email but confirmed ideally on the telephone or change to established processes, particularly during the pandemic and beyond. in person, even if done virtually. when the new process is a digital one, • Communicate to all staff to be extra vigilant practitioners need to ensure that they provide This article was co-authored for Lockton by on these matters, as in times of disruption, such employees with training on the new system and Lindsay Ogunyemi, director, and Emma Keil, as this pandemic, fraudsters see an opportunity have appropriate internal guidance on its use. senior associate, of DWF

FROM THE ARCHIVES

50 years ago 25 years ago From “Some Common Misunderstandings about Decimal Currency”, From “Data Protection and the Practitioner”, December 1995: “Any recent December 1970: “Despite... the minting of millions of ½p coins, and review of the prosecution list from a Data Protection Registrar Report repeated assurances that they will be used in cash transactions for many reads like a Who’s Who of well-known names. The Registrar has years to come... the myth somehow persists that the new halfpenny is demonstrated her readiness to take court action where the Act intended to be only a temporary feature of our coinage.” (The coin was is infringed, from city councils to video rental companies. withdrawn from circulation in December 1984.) The general public is the Registrar’s main source of detection.”

December 2020 \ 47 In practice

THE ETERNAL OPTIMIST Taking on the inner critic Stephen Vallance offers some ideas on dealing with the inner voice that makes you doubt your ability, and the tendency of some people to ask others before making any decision

elcome back to my little corner impact, but I do give myself a hard time about verifier. When it comes to making decisions of the Journal. If any of the them as I’m sure most of you do about yours. I she will usually seek the opinion of those around topics that I cover resonate have however also successfully accomplished her before a choice can be made. It is neither W with you, or there is a many things and yet seldom dwell on them. a good nor a bad characteristic (although it can particular issue you’d like Indeed I usually skip quickly past them when be frustrating). raised, please contact me at they happen, and worse, I too often shy away I suspect that most in the profession will tend [email protected]. from praise or congratulations when offered, with towards the internal verifiers. We have to make I do a little teaching on the Diploma and on the usual “It was nothing.” While I’m quite happy lots of decisions in our day and it simply wouldn’t Trainee CPD courses, mainly on “soft” skills as with my position on the latter, I often ask myself, be practical for us to seek external support for all you may have seen me write about over recent “How do I get rid of the former?” of them. That doesn’t though mean that we don’t years. In addition to the joys of working with That question has been the subject of many at times require a little external verification, and young bright minds, it is a constant reminder to books, but here are a couple of suggestions that I many of those around us in our firms, including me of the issues we all face in our working days, try to focus on: our clients, certainly do. and a source of reflection on my own multiple • Be aware of the inner critic, and listen for it, Again, as with critics, half the battle is shortcomings. Two of those issues came to my not to it. The inner critic has nothing good or just being aware. Whether it’s speaking with mind recently. constructive to say. Either ignore it, or imagine clients, trainees or staff, remember that if they it coming from a ridiculous or comical figure to sometimes need you to give them support in their Silence your inner critic! reduce its impact. decision making, that isn’t always ignorance or All of us have a little voice in our head. It’s the • Reflect when you can on all the things that you reluctance: sometimes it’s just a bit of verification. one that tells us we aren’t doing it right; it could have done and continue to do well. In particular, Conversely, with those who are good internal have been better, or simply that we maybe aren’t when someone pays you a compliment, just say verifiers, leave them alone unless they clearly good enough. The critic is not fair. Its comments “Thank you; that was kind.” are asking for help. aren’t based on fact or evidence. They are just On a similar note, perhaps it’s worth always the echoes of our fears and uncertainties. For remembering the struggles of others and how some of us the voice is louder, for others an important it is to pay them a compliment when occasional whisper, but we all live with our inner you can. critic’s mutterings. Mine, I suspect, are a bit on Stephen Vallance the loud side, but what seems unfair is that my Be your own verifier works with HM Connect, the referral and support inner supporter is unusually quiet. A little like our critics, there are those of us who network operated by I’m human, ergo I make my mistakes. are internal and those who are external verifiers. Harper Macleod Hopefully they are seldom and of minimal For example, my wife is the ultimate external

Notifications

ENTRANCE CERTIFICATES MUNRO, Alexandra Mairi BARN, Lewis Fraser GIBB, Justyna NEIL, Chloe Elizabeth ISSUED DURING OCTOBER/ O’KEEFE, Declan BEDRULE, Constantin GRAY, Kirsty Margaret Campbell NEILSON, Fiona NOVEMBER 2020 RENTON, Fiona Louise McCallum BLACK, Catherine Lorraine HISLOP, Caitlin Flora Kennedy NELSON, Kirsty Laura BAMFORD, Kirstin Mairi ROBERTSON, Andrew Francis BOWIE, Euan Forbes HOEY, Claudia Maria Ayre NEWMAN, Keanu BROWN, Siobhan Catherin SUPER, Matthew Paul BRADLEY, Nicola Anne HOOMAN, Laura Anne PATRICK, Sarah BRUCE, Emma TOLLAND, Sarah BROLLY, Ashley Louise HOUSTON, Suzanne Lesley ROBERTSON, Victoria CRAWFORD, Chloe Hope TUOHY, Clare Filippi BROWN, Benjamin Ian ILES, Sean Hugh SANDHU, Sonia DORRIAN, David Lindsay WILSON, Amelia Grace BRYAN, Lewis Greig INGRAM-SMITH, Rhea McNulty SMITH, Ellen Jemima Stuart DRUMMOND, Lucy Olivia CAMPBELL, Rachel Sarah INNES, Claire Louise SPEIRS, Jamie EL-ATRASH, Hanan APPLICATIONS FOR CAVANAGH, Hollie Kathleen Rose JAVED, Shumail STEELL, Richard IQBAL, Amaal Maia ADMISSION CLYDE, Karen Lucy McCORMICK, Matthew Donald THOMAS, Ben JORDAN, Laura Patricia OCTOBER/NOVEMBER 2020 CROMBIE, Dale Samuel MACDONALD, Lynn TRAPP, Danielle Collette KEENAN, Julianna Frances AITKEN, Kirsty Rosalind FARRIER, Rachel Helen MARSHALL, Hannah Elaine WALKER, Maxine Nicole McALPINE, Fraser Henry ALI, Isra Jabbar FERRAIOLI, Jade Agnes Edna MITCHELL, Lauren Margaret WATSON, Olivia Rose MARSHALL, Georgia Jessica ALI, Saira FITZPATRICK, Poppy Catherine MORRISON, Ruairidh Duncan WRIGHT, Emma Elizabeth

48 / December 2020 IN ASSOCIATION WITH

ASK ASH Cloud technologies A friend in need enable better A friend at another firm is relying client service

too much on me for advice 2020 has made it incredibly challenging for law firms to meet the needs of their clients. While circumstances Dear Ash, remain largely uncertain for 2021, there is no better time One of my friends has begun to rely on me consistently to to think about designing the future of their legal services. help him with his legal work; and I’m getting irritated with him. He works in a separate firm, at a more junior level, and is What’s most important to recognise is that in 2020 therefore used to relying on guidance from other more senior clients have grown more accustomed to technology staff while in the office. However, since lockdown he has been and are using it more. With this change, clients are working more from home, and tends to contact me rather also shifting their expectations when working with than his own manager as he doesn’t want to appear as if he professional service providers. can’t work independently. I was happy to help out with the odd query, but he is now increasingly relying on me on a daily How has technology become more vital to clients? basis to confirm, for example processes for lodging documents • 50% say they are more comfortable with technology and drafting statements, and it is encroaching on my own • 52% say they are using technology more working day. I don’t want to jeopardise my friendship, but I • 58% say technology is more important to them now can’t continue like this either. than before the pandemic • 53% say cloud technology is a necessity to them Ash replies: Your friendship is clearly under strain – and likely to be As clients adopt these technologies, they also grow more further impacted if you don’t address this issue promptly. accustomed to the ease and convenience of solutions Although your friend is at a more junior level, he still needs like videoconferencing software, and the time-saving to be clear on the boundaries in regard to the support you benefits they provide. The fact that they can connect face can provide going forward. Therefore arrange a time to have to face without leaving their home or office vastly reduces a coffee across Zoom, and just confirm the pressures you too commute times and allows more flexibility within the are under, explaining how you will not be as accessible as you context of other personal and professional commitments. have been. The same advantages apply to paperless workflows, Also confirm that it is important for him to feel supported which are fast and easy, and help keep a clear record at work and that he raise any concerns with his own manager of communications. to ensure that he can ask questions as and when he needs; it may be that one of his colleagues could be his designated Most law firms have already adjusted how they operate in mentor and provide him with the support he needs. some form or another, and much of this shift has seen firms Explain to him that everyone needs a helping hand once in adopt more online cloud technologies to support remote a while, and whilst you are happy to provide this, it can’t be work – both among staff and with clients. What many firms something you can provide on a daily basis because of the are also realising is that these shifts will likely be in many challenges of your own job. ways both permanent and irreversible. Hopefully by being open and honest you can make your friend understand your point of view; if he is a true friend then These are just some of the he will understand! findings from Clio’s recent Legal Trends Report, which is based on aggregated Send your queries to Ash and anonymised data from tens of thousands of legal “Ash” is a solicitor who is willing to answer professionals. Based on the work-related queries from solicitors and other legal research, lawyers should professionals, which can be put to her via the editor: be looking at how to use [email protected]. Confidence will be respected cloud-based technologies and any advice published will be anonymised. to expand virtual and Please note that letters to Ash are not received at remote systems to better the Law Society of Scotland. The Society offers a support serve the needs of clients. service for trainees through its Education, Training & Qualifications team. Email [email protected] To learn more about how Clio can support or phone 0131 226 7411 (select option 3). innovation at your law firm, visit www.clio.com/uk

December 2020 \ 49 Classifieds

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TO ADVERTISE HERE, CONTACT Elliot WhiteheadAD TYPE: LINAGE Private client lawyers wanted CLIENT: WJM on 0131 561 0021 Edinburgh firm would like to hire existing team or [email protected] take over another firm specialising in private client work. Please reply to journalenquiries@ AD TYPE:connectcommunications.co.uk LINAGEAD TYPE: quoting LINAGE CLIENT:Box no J2138MORGANSCLIENT: FRANK IRVINE Catherine McKay (Otherwise Irene McKay), deceased Would any Solicitor or other person holding or having knowledge of a Will by the late Catherine McKay, otherwise CAROLINE MARY ANNE CHRISTINA WHITING known as Irene McKay who MATHESON (deceased) OR REID (Deceased) died on 9th May 2020, and Would anyone holding or Would anyone with knowledge who resided formerly at having knowledge of a Will of a Will of the above named 44 Bourtree Road, Earnock, by Caroline Mary Matheson who formerly resided at 61 Hamilton ML3 8PT, and latterly late of Flat 12/1 Iona Street, Lochlibo Avenue, Glasgow, at Abercorn House Nursing Edinburgh, EH6 8SF and G13 4AE and who died on 27 Home, Hamilton ML3 7QH, sometime of 16 Bothwell August 2020, please contact please contact Kathleen Street, Edinburgh please Stewart Pettigrew at Frank McArthur at Wright, Johnston & contact Lynsey Rintoul at Irvine Solicitors, 63 Carlton Mackenzie LLP, Solicitors, 302 Morgans, 33 East Port, Place, Glasgow, G5 9TW St Vincent Street, Glasgow G2 Dunfermline, Fife, KY12 7JE on 0141 375 9000. 5RZ, telephone 0141 248 3434 (lynseyrintoul@morganlaw. or email: [email protected]. co.uk)

50 / December 2020

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December 2020 \ 51 Celebrating our 25th year... Recruiting Lawyers, earning trust!

SEASON’S GREETINGS

As the year draws to a close, we’d like to take this opportunity of thanking all of our clients and candidates for choosing to work with us...we’ve enjoyed every minute of it, and we look forward to working with you again in 2021. We wish you a happy, healthy and prosperous New Year.

Frasia Wright Associates, The Barn, Stacklawhill, By Stewarton, Ayrshire KA3 3EJ T: 01294 850501 www.frasiawright.com Engagement is at the heart of everything we do

From airports to zoos, and everything in between, our talented team helps some of the world’s biggest brands to engage with their audiences across multiple channels, timezones and languages. So if your business is looking to get its message across in the best way possible, choose wisely. Choose Connect.

connectmedia.cc

creative | content | communications digital | events | video

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