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Staying Remote? Has Lockdown Working Changed How Solicitors Regard Their Offices? the Journal Reports As Reopening Beckons Group proceedings: “Breathing space”: a cure Cross-border maintenance: the new Scottish regime for contracts hit by COVID? the differences explained P.16 P.20 P.28 Journal of the Law Society of Scotland Volume 65 Number 8 – August 2020 Staying remote? Has lockdown working changed how solicitors regard their offices? The Journal reports as reopening beckons Click here to see Peter’s welcome message Publishers Editor The Law Society of Scotland Email > [email protected] Atria One, 144 Morrison Street, Read > www.lawscot.org.uk/news-and-events/blogs-opinions/ Edinburgh EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Follow > twitter.com/jlsed e: [email protected] President: Amanda Millar Vice President: Ken Dalling Holyrood’s priorities Chief Executive: Lorna Jack Online resources Which current bill before the Scottish Perhaps our MSPs’ time would be www.lawscot.org.uk Parliament has generated the most heat better spent attempting to mitigate the www.journalonline.co.uk in public debate? Nothing to do with many hardships that seem destined to www.lawscotjobs.co.uk the pandemic emergency, or even the result from the coronavirus lockdown and Subscriptions independence debate, but hate crime. its after-effects on the economy. Some Practising Certificate (inclusive cost) £680; The bill based on Lord Bracadale’s debt advisers, for example, regularly voice Non-Practising Members (UK and Overseas, report, supposedly largely a consolidating warnings that debtor support is in a poorer inclusive cost) £315; Annual subscription UK £84; measure, finds itself at the centre of a storm state now than 10 or 15 years ago. That Overseas £108; Trainees Free into which virtually every commentator should be cause for serious concern. Editorial seems to have felt obliged to pitch their And what about those worried for Connect Publications (Scotland) Ltd criticisms, alongside interests ranging from their own homes? Into the mix here we Editor: Peter Nicholson: 0131 561 0028 bishops to secularists to the police. have the Holyrood Local Government e: [email protected] Some of the comments have Committee’s decision to drop the Fair Advertising: Elliot Whitehead: 0131 561 0021 been remarkable (is there really Rents (Scotland) Bill from its e: [email protected] a serious argument that programme, claiming excessive Review editor: David J Dickson possession of the Bible could workload. Taken in private Online legal news: become an offence?), but session after this member’s e: [email protected] the Society and the Faculty bill had been referred to the Other Connect Publications contacts, of Advocates have each committee for scrutiny, it telephone 0141 561 0300 presented substantial and goes against the principles Head of design: James Cargill (0141 561 3030) considered responses to the of accountability that are [email protected] committee scrutinising the bill, supposed to govern the way the Editorial board making some weighty points about Parliament conducts itself. Austin Lafferty, Lafferty Law lack of clarity of the proposed offences, not Whether the bill, which has wider Andrew Todd, Springfield Properties Plc least where the bill happens to depart from relevance than COVID-19 related problems, Philip Hannay, Cloch Solicitors Lord Bracadale’s proposals is the best way to address the serious David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co Faculty goes so far as to conclude that issue of private rented sector costs is Kate Gillies, Harper Macleod LLP ministers should “reconsider” the bill – something that should be debated openly which, given that its main purpose is to in the chamber, not annulled by the private restate existing law, should not be lightly decision of a handful of MSPs. dismissed. If the bill does proceed, it can be There are many worthy topics for expected to take up much parliamentary legislation, but at times of national time before it is passed. The same may emergency such as this, our Parliament Disclaimer be true of the well intended incorporation would improve its public standing if it The views expressed in the Journal of the Law Society of Scotland are those of invited contributors of the United Nations Children’s Rights cleared its decks in order to prioritise and not necessarily those of the Law Society of Convention, a bill still to be introduced. Are devoting as much time as possible to Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any these the best use of the now limited time alleviating the effects of lockdown and claims or representations made in any advertisement, in the Journal and accepts no liability to any person remaining before next May’s election? recession on our people. for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. By so responding, or placing reliance, readers accept that they do so at Contributors their own risk. On no account may any part of this publication be reproduced without the written If you would like to contribute to Scotland’s most widely read and respected permission of the copyholder and publisher, application for which should be made to the publisher. legal publication please email: [email protected] © The Law Society of Scotland, 2020 ISSN: 0458-8711 Alan W Tom John West Catherine Heather Total Net Circulation: 13,689 Robertson McEntegart (co-author Corr Thompson (issue specific May 19) is a senior is a solicitor with Elizabeth is principal is a partner Av. Net Circulation: 13,628 (Jul 18 - Jun 19) associate with advocate Ahmad) is an soicitor, Legal with Brodies MBS Solicitors, and partner associate with Services, and a member Edinburgh at TLT LLP SKO Family Scottish of the Tax Law Law Specialists Enterprise Committee August 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.8 – AUGUST 2020 Perspectives Features Briefings In practice 04 Journal online 12 30 Criminal court 40 Professional news Our August website exclusives We revisit firms who shared Roundup, with COVID-19 musings Virtual custody courts; Council remote working experiences: vacancies; Rising Star 2020; new 05 Guest view 32 Employment what will change in the office? levy?; policy work; Will Relief Stuart Munro Acting on anonymous complaints 42 The Word of Gold 06 Letters 16 32 Family Charging in line with our brand “New” lawyers, not “young”; Two contributions on the new An expert compromised Reviews group actions rules, including 43 Training: a wider view 34 Human rights from a working group member One firm’s programme for 07 Offbeat Judicial review and sifting out learning business Quirky news; Profile column 20 34 Pensions 44 Cross-border tax reporting 08 President Can the law allow “breathing PPF compensation; FCA action DAC6: what solicitors need Technology and citizens’ rights space” for contracts affected 35 Discipline Tribunal to know by COVID-19? Four recent cases Regulars 46 Risk management 22 37 Property Common issues, and some tips, The Supreme Court on siblings Commercial leases: code of in wills, trusts and executries 09 People as “relevant persons”: what practice for business recovery 48 Ask Ash 33 Consultations does it mean for hearings? Anxiety over going back to 39 Archive 38 In-house Findings of the lockdown survey the office 45 Notifications 26 49 Classified The Scottish football litigation: 50 Recruitment arbitration clauses, and unfair prejudice COVID-19 code 28 of practice for Cross-border maintenance: commercial leases: law and practice after Villiers Page 37 ONLINE INSIGHT PUBLISHED ONLY ON WWW.LAWSCOT.ORG.UK/MEMBERS/JOURNAL/ The broken shield: a Legal tech: some tips Charities: members Tradecraft: money compliance nightmare? for catching up have “fiduciary” duties and practicalities Loretta Maxfield considers the Brian Rooney provides some A Supreme Court decision in an In his latest “tradecraft” implications of the CJEU decision personal recommendations for English appeal on the duties of collection of practical advice, upholding the standard contractual the benefit of lawyers whose members of a charitable company Ashley Swanson focuses on clauses for data protection outside legal tech is lagging behind, and should be noted also by Scottish property transactions and trying the EU, but invalidating the EU-US impeding their productivity. charities, Alan Eccles advises. to smooth the path particularly Privacy Shield. around settlement. 4 / August 2020 OPINION Stuart Munro While the pilot scheme has encouraged some to believe that remote summary trials can become the norm, serious questions remain to be answered if basic rights are to be protected, as they must t’s funny how quickly things change. Six months • What about the accused? Can they participate from home? ago the news was all about Brexit; summer What if they record witness evidence? How can we tell they are meant heading to the sun; work meant following the proceedings? How can they communicate with I commuting, the office, the courts. their solicitor? Or should they also be at court, and in the Then, in mid-March, our lives were turned same room too? upside down. The initial hope that coronavirus • How does the system cope with vulnerable witnesses or would be over in a few weeks has been replaced by a recognition accused? What if a participant doesn’t have wi-fi, or a suitable that we’re in it for the long haul, with social distancing, local laptop, iPad or phone? The system has to cater for everyone. lockdowns and further waves and spikes until a vaccine finally • And what about volume? Most courts allocate six to 10 trials comes to the rescue.
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