Month: February 1998

On 3 April 1998 in Cardiff Crown Court three students at Glasgow Caledonian University were convicted of an offence under the Computer Misuse Act 1990. The trio’s offer to improve the Website of a large Surrey estate agency had been turned down and in revenge they replaced advertisements of up-market houses on the existing Website with pornographic pictures of women and couples as well as obscene texts. The prosecution was brought in Cardiff because the Internet service provider on which the Website was based was located in South Wales.

The Scottish Law Commission published its Report on the Law of the Tenement (Scot Law Com No 162) on 25 March 1998. If implemented, there will be in effect a statutory code of tenement law. The major substantive change to the existing common law will be the removal of the ability of a single tenant to block common repairs. Instead every tenement will have a management scheme ensuring that repairs are carried out and that decisions are reached by a majority on these and other matters of mutual interest and concern. Maintenance costs (including liability for repair, cleaning, painting and day-to-day running) will be apportioned amongst the flat owners in accordance with certain rules (see para 5.67). An individual flat owner in a tenement who objects to a majority decision may apply to the Sheriff Court for annulment of the decision on the grounds that it is not in the best interests of all the owners, or that it is unfairly prejudicial to one or more of the owners. All this will be a default scheme, to apply in the absence of relevant provisions in the titles to the tenements. For the kind of problem to which the existing law has given rise, see No 6 .

The temporary home of the Scottish Parliament while the permanent one is built at Holyrood will be the General Assembly Hall of the Church of Scotland, located on The Mound in Edinburgh, it was announced on 20 March. Earlier, statements by Scottish Office ministers had suggested that the Glasgow chambers of the former Strathclyde Regional Council were under consideration as a possible site. Following the announcement, the deputy leader of the Glasgow council, Councillor Charles Gordon, stated: Edinburgh has cheated us. The Edinburgh establishment so detested the notion of Glasgow being given even temporary benefit that they moved heaven and earth to come in with a late tender. He added: We underestimated the extent of their hatred for our city, which they called sleazy. Donald Dewar, the Secretary of State for Scotland, remarked: I am a Glasgow MP, my home is in Glasgow, and I spend a lot of time trying to get home to Glasgow. He also indicated that the decision to locate the temporary accommodation in Edinburgh was not a tendering process. It was also announced on 20 March that the National Heritage Memorial Fund had turned down a Glasgow application for Lottery funding to support the creation of a new National Gallery of Scottish Art and Design in the city. Mungo Campbell, Director of the Hunterian Museum in Glasgow, said: The Edinburgh chattering classes have always been good at making their voices heard and now they feel stronger than ever. This is not good for Scotland and it is the problem that will epitomise Scottish politics from now on. (Sources: Edinburgh Evening News, 20 March 1998; Scotsman, 21 March 1998).

The Scottish Parliament will be located on a site at Holyrood, it was announced on 9 January 1998. The site was previously occupied by Scottish & Newcastle, the brewing company, and is across the road from the Abbey and Palace of Holyroodhouse. Unlike the other main contender for the location of the Parliament building, Calton Hill, Holyrood has been the site of parliaments in the pre-1707 past. The first known parliament (or colloquium) at Holyrood was in 1255 when Alexander Comyn earl of Buchan and justiciar of Scotia presided over an inquest into the liability of Dunfermline Abbey to pay suit at Perth sheriff court (see Acts of the Parliament of Scotland, vol 1, p 426). Parliaments were also held at Holyrood in the fourteenth and sixteenth centuries. The Palace became the principal royal residence in Scotland in the reigns of James IV (1488-1513) and James V (1513-1542). Holyrood was also of legal significance as the debtor’s girth or sanctuary, particularly after the Reformation of 1560. Indeed, the sanctuary, which extends from the Abbey Wynd in front of the Palace across the whole of nearby Arthur’s Seat, has never been formally abolished, although the last debtor booked in as long ago as 1880, the year of the passage of the Debtors (Scotland) Act which removed the sanction of civil imprisonment for ordinary debts which had been the main occasion for seeking sanctuary until that time. The first elections for the Parliament will be held on 6 May 1999. Only some nine of the 72 Scottish MPs at Westminster have so far indicated an intention to stand for the Scottish Parliament. But they include the present Secretary of State for Scotland, Donald Dewar, and the leader of the Scottish Liberal Democrats, Jim Wallace.

was published on 18 December 1997, and received its Second Reading in the House of Commons on 12 and 13 January 1998. It largely gives effect to the White Paper of July 1997 described below (see No 22 ). Key provisions include Clause 35, which provides for the continuing effect of the Acts of Union 1706 and 1707, and Clause 27(7), which declares that the legislative competence of the Scottish Parliament does not affect the power of the Westminster Parliament to make laws for Scotland. Clause 28 states that an Act of the Scottish Parliament will not be law insofar as any provision of the Act is outside the legislative competence of the Parliament. It thus appears that the whole Act will fall if any part is incompetent. The Parliament cannot legislate on reserved matters which are spelt out in Schedule 5. Bills will be scrutinised for competence by the Scottish Executive, the Presiding Officer of the Parliament and the Law Officers (the Lord Advocate, the Solicitor General for Scotland, and the new Advocate General for Scotland). The Law Officers may refer a Bill to the Judicial Committee of the Privy Council for a decision on its legislative competence. Further, under clause 33, the Secretary of State may prohibit the submission of a Bill for Royal Assent if there are reasonable grounds to believe it incompatible with international obligations or if there are reasonable grounds to believe it would have an adverse effect on the operation of another enactment as it applies to reserved matters. Legislative competence can also be tested after enactment in judicial proceedings (see Schedule 6). Such proceedings can be instituted by the Advocate General OR the Lord Advocate, raising the possibility of a difference of view being tested in court, since the Lord Advocate may defend any such proceedings instituted by the Advocate General. The matter of legislative competence can be raised in any court or tribunal. The question may then be referred to the Inner House of the Court of Session or, in criminal matters, to the High Court of Justiciary, unless the question arises in the Inner House or the High Court, in which case reference is made to the Judicial Committee of the Privy Council. Under clause 93 courts are empowered to find Acts of the Scottish Parliament outwith its legislative competence but may then make an order limiting or removing any retrospective effect of the decision, or suspending it to allow the defect to be corrected. The judges will clearly have a key role in the new Scotland, and there are important provisions on their appointment and removal. While the Lord President and Lord Justice Clerk will continue to be appointed by the Prime Minister of the UK, he can only appoint nominees of the Scottish First Minister. Further, it will be for the First Minister to recommend to the Queen the appointment of any other Court of Session judge, sheriff principal or sheriff. A judge of the Court of Session will be removable on the recommendation of the First Minister, although the Parliament must so resolve by two-thirds majority. (See for further comment H. L. MacQueen, Quis custodiet? , human rights and the judges, Scotland Forum no 1 (January 1998) 8-9; idem, Judging the issue of legal power, Edinburgh Evening News, 10 February 1998; N. Gow, Judicial tenure and the Advocate General, 1998 SLT (News) 87; A. W. Bradley, Constitutional reform, the sovereignty of parliament and devolution, in Constitutional Reform in the United Kingdom: Practice and Principles, University of Cambridge Centre for Public Law, 1998.) However, comfortingly for the judiciary, judicial remuneration is listed among the matters reserved to Westminster. Amongst other points of interest should be mentioned the definition of Scots private law in classical terms of persons, things and actions (see clause 111(3)), the specific inclusion of floating charges and receivers amongst matters not reserved (see Schedule 5 Head 3 Section 2), and the provision for the possibility of codification of Scots private and criminal law (see clause 28(10)). A decision on the location of the Parliament building is now awaited. In early December the Scottish Office announced that a further site was under consideration, beside the Palace of Holyroodhouse. Whichever site is chosen, it now seems certain that the cost of constructing the Parliament will exceed the original estimate of £40 million. (See now No 28 ).