Month: December 1997

On 21 August 1997 Sheriff Principal Gordon Nicholson QC ruled that the tradition of only male participation in certain parts of the Hawick Common Riding festivities constituted illegal sex discrimination (see 1997 GWD 36-1867; 1997 SCLR 917; 1998 SLT (Sh Ct) 42). The two women who raised the initial complaint, Ashley Simpson and Mandy Graham, received £1 in damages, and were later feted at a Women of the Year lunch in London. See further No 8 and No 11.)

On 1 September 1997 it was announced that Dundas & Wilson, a long-established firm of solicitors in Edinburgh, would merge with the Glasgow firm Dorman Jeffrey and become part of the international business services network established by the giant accountancy firm of Arthur Andersen. The private client department of Dundas & Wilson was not involved, and it has become a separate firm under the name Turcan Connell. On 6 October it was announced that the private client department of another Edinburgh firm, W & J Burness, would be merging with Turcan Connell. Earlier, in August 1997, the Monopolies and Mergers Commission published its finding that, although the Solicitors Property Centres operating in Edinburgh, Aberdeen, Glasgow and other parts of Scotland did form a complex monopoly, their rule that non-solicitors such as estate agents could not use the facilities to advertise properties for sale did not operate against the public interest (Solicitors’ Estate Agency Services in Scotland, Cm 3699).

The Labour Party was returned to government by an overwhelming majority in the British General Election on 1 May 1997. Of the 72 Scottish seats, 56 went to Labour with 45.6% of the vote, 10 to the Liberal Democrats with 13%, and 6 to the SNP with 22%. All 11 sitting Conservative MPs lost their seats, although the party garnered 17.5% of the overall vote. Lynda Clark QC fulfilled her career ambition by being elected Labour MP for Edinburgh Pentlands (see No 3 below). The new Labour Government is committed to the introduction of a Scottish Parliament following a referendum in which the Scottish electorate will be asked whether there should be such a parliament, and whether that parliament should have “tax-varying” powers. The referendum is expected to take place during September 1997, and the Devolution Bill will be introduced in the following parliamentary session. During the election campaign, Mr Blair, leader of the Labour Party and now Prime Minister, equated the powers of the prospective Scottish Parliament with those of an English parish council, and observed that “sovereignty remains with me as an English MP, and that is the way it will stay”.

Two industrial tribunals have come to differing conclusions on the question of whether the Scots and the English are separate races for the purposes of the Race Relations Act 1976. In February 1997 a tribunal sitting in Glasgow found that the Scots and the English belonged to the same ethnic group and so there had been no racial discrimination against Scottish employees of British Airways in losing seniority benefits upon a job transfer from Scotland to work based in London, when English colleagues being similarly transferred from Manchester and Birmingham to Gatwick and Heathrow took their seniority with them. A month later, however, a tribunal sitting in Edinburgh found relevant the claim of Graham Power, deputy chief constable of Lothian and Borders Police, that the Northern Joint Police Board had overlooked him for appointment as chief constable because he was English. The following dictum of Lord Simon of Glaisdale was cited during argument in the Edinburgh case: Scotland is not a nation in the eye of international law, but Scotsmen constitute a nation by reason of those most powerful elements in the creation of national spirit: tradition, folk memory and a sentiment of community. The Scots are a nation because of Bannockburn and Flodden, Culloden and the pipes at Lucknow, because of Jenny Geddes and Flora Macdonald, because of frugal living and respect for learning, because of Robert Burns and Walter Scott. So, too, the English are a nation – because Norman, Angevin and Tudor monarchs forged them together, because their land is mostly sea-girt, because of the common law and of gifts for poetry and parliamentary government, because, despite the Wars of the Roses and Old Trafford and Headingley, Yorkshireman and Lancastrian feel more in common than in difference and are even prepared at a pinch to extend their sense of community to southron folk (Ealing LBC v Race Relations Board [1972] AC 342 at 364). For further comment upon the question, see Aidan O’Neill, “The Scots, the English and the Race Relations Act”, 1997 SLT (News) 101-105. See further No 20 above.

On the evening of 20 March 1997, with the Hale-Bopp comet and a full moon shining brightly in the northern skies, a sperm whale (physeter catodon) was found stranded near the rail and road bridges over the Firth of Forth at Queensferry. The beast was re-floated but over the next few days refused to leave the area, despite attempts by BP tugs and the pleasure boat Maid of the Forth to push him back out to sea, where an appropriate food supply might be available and he would be able to resume his migratory trip from the Arctic to the Azores. However, “Moby”, as the whale was dubbed by the media, persisted in returning and swimming westwards up-river, and was eventually abandoned to his own devices. He beached and died on the foreshore at Airth on 31 March – the first sperm whale to be stranded in the Forth since 1769. This raised a question about ownership and disposal of the carcass, which was 15.2 metres in length and weighed 38.5 tonnes. Discussions involved the environmental health department of Falkirk Council, Marine Pollution Control (a branch of the Coastguards), Deep Sea World (a commercial museum based at North Queensferry), the Receiver of Wrecks, and the National Museums of Scotland (NMS). However, in Scots law the Crown appears to be the owner of at least larger stranded whales (see Stair Memorial Encyclopaedia, vol 18, para 543 note 1 for the authorities, which include Regiam Majestatem and Balfour’s Practicks), and Moby’s remains were finally taken over by NMS. His malodorous skeleton has already been on display at the Royal Scottish Museum in Edinburgh and at Deep Sea World, the smell being caused by oil oozing slowly from the bones.

In February 1997 the Roslin Institute, which is based near Edinburgh, announced that it had developed a technique for cloning animals, and introduced the world to Dolly the sheep, the first product of this process. The Institute has applied for a patent for the process, which would theoretically cover the cloning of human beings as well as animals. It seems likely that Dolly will join the Onco or Harvard mouse in the animal patent hall of fame, the latter beast being still the subject of a test case in the European Patent Office on the morality of patenting at least some aspects of biotechnology.