Love over Parliament House

Prolific author and medical law professor Alexander McCall Smith was called to the Scots Bar on 26 March 2010.

width=137Despite rumours that Professor McCall Smith intended to supplement his meagre royalties with appearances in bail appeals, it emerged that he had been called on a non-practising basis.

A search of the McCall Smith ouevre for references to the Faculty of Advocates drew little apart from chapter 25 of The World According to Bertie (Polygon, 2007), where an un-named advocate "with fine, rather aquiline features" has a rather worrying consultation with Angus Lordie in the case against Angus' gold-toothed dog Cyril on a charge of biting a child in Dundonald Street, Edinburgh.  While Cyril is eventually found not guilty, this owes everything to the intervention of Bertie (aged 6) and nothing to the advice or forensic skills of counsel.  Perhaps the omission will be rectified in forthcoming episodes of 44 Scotland Street.

The Faculty of Advocates website reminds Scots Law News that the Professor is not the first member of his family to be called to the bar: in 1951 Anne McCall Smith, a relative, was one of the first women to be admitted to the Faculty (Scots Law News thinks possibly the third).

[Photograph courtesy of Karin Sohlgren, Stockholm]


Crouch, touch, engage: collapsed scrum at Murrayfield

Scots Law News has followed the gathering storm about alternative business structures (aka Tesco law) within the solicitors’ branch of the Scottish profession without quite seeing how it would all turn out; and its mystification was deepened by competing accounts of the Special General Meeting about the matter held but not completed by the Law Society of Scotland on 25 March 2010.

The SGM had been requisitioned by the Scottish Law Agents Society in order to move the reversal of the Society’s support for the Legal Services (Scotland) Bill, which would enable non-lawyer ownership of law firms.  In the run-up to the meeting, support for the Law Society continuing its existing policy had been voiced in an open letter from 13 well-known larger city firms (listed in an appendix below), while the Scottish Law Agents Society was clearly representing a body of opinion amongst smaller firms, especially outside the major cities.  It had also procured the support of a very large number of proxy votes (over 2,300) ahead of the meeting (there were, however, also about 900 proxies in favour of the Law Society’s position).

But in the end the SGM, held in the home of big hits, rucks and mauls at Murrayfield stadium, Edinburgh, became one of those collapsed scrums which have so disfigured this year’s Six Nations rugby championship, as the meeting was adjourned without a vote being taken on the substantive motion.  There was a vote on the motion to adjourn, confined to the members physically present, and it was carried by 76 votes to 33, with 12 abstentions.  It appears that further discussions are to take place between the competing parties in a search for a consensual position.  Nevertheless, as is often the way with collapsed scrums, what the late, lamented Bill McLaren would have called "a bit of argy-bargy", and the living but also lamented Brian Moore (a solicitor, albeit and English one) would call "handbags", broke out between the packs as they got back on their feet afterwards.

While Law Society President Ian Smart was quoted as saying –

It was clear that as the debate proceeded today, the two sides may not be as far apart as perceived prior to the meeting. The decision to adjourn was taken in the hope that we might yet reach agreement on a way forward that is acceptable to the vast majority of our membership

Mike Dailly of the Govan Law Centre waxed furious on his blog, saying that democracy had been “shamed” at the meeting, and adding:

"As the prospect of defeat presented itself to the Law Society’s minority elite they tried desperately to nobble the democratic will of the majority opposition.

They called for a comfort break, and asked opponents if they would agree to a restriction on external ownership whereby ABS providers would be required to have a majority of solicitors. The opposition agreed to enter into dialogue after the SGM but refused to compromise their motion, and pressed for a vote.

Facing certain defeat, Scotland’s Law Society President called for the meeting to be adjourned and seized upon a technical rule whereby only those present in the room could vote, resulting in over 3,000 proxy member votes being discounted. The net result was that 70 members of the profession – including around 50 Council members and a handful of multi-millionaires – voted to disenfranchise the democratic will of over 3,200 members."

The Times report on 26 March saw the result of the meeting as “a humiliating climbdown” for the Law Society, while The Scotsman report said the meeting had “descended into acrimony”.  A minute of the proceedings appears here on the Law Society of Scotland website.

Not having been present at the meeting, Scots Law News cannot pronounce on who is to be believed in all this.  People we respect have either spoken out strongly against Tesco law, for example here, here, and here, or have been powerful advocates of the change, for example here and here.  A notable voice in favour of compromise has been the only female President of the Law Society, Caroline Flanagan (her contribution here).  But it is difficult for an outsider to see the truth when the debate has become so polarised.

Three thoughts only.  First, if there are, as the Law Society website suggests, around 10,000 solicitors in Scotland, then well over half of them have so far made no attempt to influence this decision.   Second, the Law Society and the big firms have been at best uneasy bedfellows for many years, and it is difficult to see this present alliance as one that strengthens the Society’s position in the long run.  And third, although we do not seem to have a date upon which the SGM will be resumed, it is clear the proxies will remain to be cast on that occasion. 

Appendix: The 13 supporters of the Law Society on ABS
Anderson Strathern LLP
Austin Lafferty Solicitors
Blackadders LLP
Dundas & Wilson LLP
Harper MacLeod LLP
HBJ Gateley Wareing LLP
Lindsays WS
Maclay Murray & Spens LLP
McGrigors LLP
Semple Fraser LLP
Shepherd and Wedderburn LLP
Pagan Osborne
Turcan Connell

Life with the Supremes: where did our love go?

Scots Law News paid its first visit to the new UK Supreme Court on 15 March 2010 and, while duly impressed by the splendid renovation of the former Middlesex Guildhall without and within, was most appreciative of the public cafeteria, which may well offer the best value-for-money light lunch in London.

width=240But while Scots Law News marches on its stomach, its appetite for stories about the new court and its Justices, aka The Supremes, has been whetted by attendance at various seminars and lectures on the subject since the turn of the year, plus the doings of the Justices themselves in their early Scottish cases.

Starting with the Justices themselves, it is hard to know whether to give pride of place to Lord Brown’s attempt in McInnes v HM Advocate [2010] UKSC 7 para 36 to earn a place in the Scottish judicial (or should that be judicious?) pantheon alongside Lord Cranworth’s celebrated comment in Bartonshill Coal Co v Reid (1858) 3 MacQ 266 (at 285), or to the Oxford tutor style with which a dissenting Lord Rodger chooses to highlight perceived flaws in the reasoning of the majority in Martin and Miller v HM Advocate  [2010] UKSC 10 paras 142-149.  Lord Rodger’s strictures are too long to quote here and should simply be savoured in the original, albeit perhaps most beneficially while listening to the original Supremes’ greatest hit, “Where did our love go?” (a performance here on YouTube).    Also helpful, at least to those of a philosophical and historical cast of mind, is Aidan O’Neill’s 7 March blog on the subject here

width=86The general thrust of Lord Rodger's grading of his pupils may be seen in this concluding passage (para 149) –

"Until now, judges, lawyers and law students have had to try and work out what Parliament meant by a rule of Scots criminal law that is 'special to a reserved matter'.  That is, on any view, a difficult enough problem.  Now, however, they must also try to work out what the Supreme Court means by these words.  It is a new and intriguing mystery."

width=86Lord Brown’s Cranworthian dictum is commendable in its brevity,  if not its sentiment, and can simply be quoted here –

This, I apprehend, would be the position in English law (both as to the test to be applied – in England as to whether the conviction under appeal is unsafe – and as to the decision being one for the appeal court itself) and I can see no good reason why it should be any different under Scottish law.”

Just the starting point we should have in Scottish appeals.

The seminar on the Walker Report held in the Edinburgh Law School on 26 February saw a range of views on how the Supreme Court might develop in a Scottish context, with Dr Gillian Black favouring the retention of the new status quo, Professor Chris Himsworth arguing for the supremacy of the democratically elected legislature while also criticising a UK court’s use of the English court term system (although Scots Law News thinks this was the practice of the House of Lords too), and Aidan O’Neill QC pointing out the tensions arising from the High Court of Justiciary’s loss of control of the Scottish criminal justice system (illustrated by the McInnes and Martin and Miller cases already mentioned).  Your reporter suggested that there had been insufficient consideration of why any legal system, but especially a small one, needed  three tiers in its judicial hierarchy; perhaps the top level should be a judicial law commission, reviewing the law more systematically and  not just correcting the decisions of the lower courts; but this was dismissed by unkind other contributors as simply your reporter’s bid for the highest judicial office. 

width=86Lord Hope’s lecture about the Supreme Court in the Edinburgh Law School on 12 March has already been blogged elsewhere on this website; but it seemed to your reporter to say several further interesting things.  The court was not just a movement of judicial furniture across Parliament Square in Westminster; the opportunity to change and modernise had been taken in various ways.  But in Lord Hope’s view, not far enough, and he itemised some of these, notably the question of leave to appeal in Scots cases, on which he now holds an affirmative view.  There were also such discontinuities with the House of Lords as the Justices being no longer “noble and learned friends” (all too obvious, one might think, in the Martin and Miller case).  In answer to a question, Lord Hope declined to say how far the principle of the House of Lords 1966 Practice Statement declaring that court’s power to over-rule itself had been carried over into the Supreme Court; but he did seem to suggest that if it had, only a court of greater numbers than the previous one could actually over-rule the latter. 

Although Lord Hope complimented the Walker Report as providing elegant solutions to some of the difficult questions about the Supreme Court’s place in the Scottish legal system, in the end he thought the status quo was to be preferred as a practical matter.  His principal worry on this score seemed to be dilution of the Scottish presence in the Supreme Court, especially as even now there was no statutory guarantee of two Scottish judges and some feeling in England that two were not justified given the low number of Scots appeals.  Professor Walker’s point from the floor, that this would not necessarily dilute the Scottishness of the Scottish legal system, was met by concern over loss of Scottish influence over what happened in England and, by implication, the United Kingdom.  There we had to leave it for the nonce.

Pleural plaques: no legislation in England & Wales

Via the Obligations Discussion Group comes news that the Whitehall Ministry of Justice has decided against legislation to reverse the decision of the House of Lords in the pleural plaques case Johnston v NEI International Combustion Ltd [2007] UKHL 39.

The Ministry of Justice statement says:

"On the basis of medical evidence received during the course of this review, including authoritative reports from the Chief Medical Officer and the Industrial Injuries Advisory Council, we are unable to conclude that the Law Lords' decision should be overturned at this time or that an open-ended no-fault compensation scheme should be set up. While the current medical evidence is clear that pleural plaques are a marker of exposure to asbestos, and that exposure to asbestos significantly increases the risk of asbestos-related disease, any increased risk of a person with pleural plaques developing an asbestos-related disease arises because of that person's exposure to asbestos rather than because of the plaques themselves. However, if new medical or other significant evidence were to emerge, the government would obviously reassess the situation."

There is of course an interesting contrast here with the position in Scotland, where the Scottish Parliament has already reversed the House of Lords by passing the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (asp 4), albeit that Act is currently subject to review in the courts (see previously here).

The MoJ statement also says:

"The government has decided to make payments of £5,000 to individuals in this limited category under an extra-statutory scheme. The payment broadly reflects the level of compensation likely to have been received if pleural plaques had continued to be compensatable. Detailed arrangements relating to the operation of this extra-statutory scheme will be announced shortly. The scheme will apply to England and Wales, where the Ministry of Justice has responsibility for civil law. An information telephone line will be available by the end of the week and the number will be published at The government regards this as a unique situation and as not setting any precedent for any other circumstances where litigants may be disappointed."

Scots Law News understands that the appeal in Axa General Insurance Ltd Petitioners [2010] CSOH 02, the judicial review of the 2009 Act, has been set down for eight days in July 2010.  The Whitehall decision may have some interesting repercussions for the arguments in that case.