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The new regime is expected to be in effect by the end of summer 2018.
If an individual became a director before 1 October 2009, there are likely to be documents filed with Companies House that:
contain their home address; and
are publicly available to search online and download for free.
The UK government has received an increasing number of complaints from individuals about the current regime for suppressing the home address in these situations. For example:
The “serious risk of violence or intimidation” test only relates to the activities of the company. This does not cover the situation where a person may find themselves at serious risk of harm from, for example, their domestic situation or wider activities not associated with the company.
Individuals who may be at risk from identity theft and fraud cannot apply to have their home address suppressed.
What is changing?
The two key changes are:
individual directors will be able to apply to get their home address removed without having to show risk of violence or intimidation; and
the 1 January 2003 restriction will be removed.
Someone who is required to maintain a current address in the register (such as a current director of a live company) will have to provide a service address.
A person who is not subject to this requirement (e.g. a former director of a live company) will not need to provide a service address. Instead, their home address will be partially suppressed to show the first half of the postcode.
What will the application to suppress have to contain?
Amongst other things, applicants will need to give details of:
all the companies whose records they are wanting to be redacted; and
each document to be redacted (name of document, form number/title (if applicable) and the registration date of that document).
Impact for directors
These changes will be of interest to all directors who might be concerned at the availability of their home address on the public record but do not meet the current criteria for removal.
Directors will be pleased to note the removal of the 1 January 2003 restriction if they have already successfully applied for suppression of their home address – but there are other records of their address, filed before 1 January 2003.
An application under the new regime should only be made once it is in force. This is because any application made before that date will be dealt with under the current regime.
But if individuals want to apply under the new regime, especially if they have held multiple directorships, a lot of the legwork can be done in advance so that the application is ready to be submitted promptly once the new regime is in force.
Brodies is experienced in supporting directors and their companies with this type of application. Please get in touch with your usual Brodies contact if you need more information.
We’re delighted that BResourceFull Workbox won the award for ‘Best Implementation of Systems or Technology’ at the Managing Partners’ Forum Awards in London last week.
Commenting on the award, Tony Hadden, Partner and Head of Employment, said:
We are thrilled to receive this award and to have our work recognised by our peers. I would like to thank our clients for their ongoing support. This award is testament to our whole team, who were committed to creating a quality product that serves the needs of businesses and enables them to work effectively.
Brodies demonstrated that their application had a clear strategic objective in addressing a key increasing concern of the legal market: to address client demands for transparent and predictable legal costs. Furthermore, they were able to show that their project had a clearly identifiable cost benefit as well as having a significant impact on client satisfaction.
What is BResourceFull Workbox?
Workbox provides online HR know-how in a straightforward FAQ format, along with 200+ template contracts, policies, letters and forms. It’s written in plain English and constantly updated by Brodies employment law team.
If you want to know more about Workbox, please speak to your usual Brodies contact.
The Scottish Government is seeking to pass the European Union (Legal Continuity) (Scotland) Bill (the “Continuity Bill”) in the Scottish Parliament as emergency legislation. The accelerated timetable, when compared to the much more extensive process being used for the EU Withdrawal Bill (“Withdrawal Bill”) in the UK Parliament, may (at least in part) be intended to leave time to resolve the legal questions that have been raised in respect of the Bill before it has to be used in earnest.
The Scottish Parliament’s power to make law is subject to some key restrictions, among them the rules that it cannot legislate incompatibly with EU law, nor legislate on matters which the UK Parliament has reserved to itself.
The relationship between these two limits underpins the Continuity Bill, which (among other things) authorises the Scottish Government to amend those elements of EU law that are to be retained in Scots law but which are not specifically reserved to Westminster. This would include modifying EU laws in areas such as agriculture, fisheries and the environment..
By contrast, the Withdrawal Bill would allow the Scottish Government to modify the law only in respect of those matters for which they are currently responsible (i.e. in which they could legislate now). This would mean the Scottish Government would be prevented not only from modifying pre-Brexit EU law as it relates to reserved areas but also from modifying many other elements of EU law.
For more on what the Continuity Bill and Withdrawal Bill are intended to do, see our previous post here.
Whether it is lawful for the Scottish Parliament to legislate in this way is the core of the disagreement between the Scottish Government and the Presiding Officer of the Scottish Parliament on the competence of the Continuity Bill. The Presiding Officer stated at the Continuity Bill’s introduction that he did not believe it to be within the Scottish Parliament’s legislative competence.
The Scotland Act 1998 requires both the person introducing a Bill and the Presiding Officer to state whether the Bill is, in their opinion, within the Parliament’s competence. A statement from the Presiding Officer that he does not consider a Bill to be within competence does not block the Bill, so the Parliament can still pass it if it wishes. However, this is the first time that any Presiding Officer has said that a Scottish Government Bill would not be within the Parliament’s competence. On two previous occasions (the Rail Passenger Services (Scotland) Bill and the Civil Appeals (Scotland) Bill) such an opinion has been given on a Member’s Bill (i.e. a Bill introduced by an individual MSP), and on each occasion the Parliament decided not to progress the relevant Bill beyond Stage 1 of the legislative process.
What is the disagreement between the Presiding Officer and the Scottish Government?
The argument boils down to whether the Continuity Bill is incompatible with EU law. If so it would put it outside the Scottish Parliament’s legislative competence, under section 29(2)(d) of the Scotland Act 1998.
The Presiding Officer does not specifically identify in his statement what provisions of the Continuity Bill he considers would be incompatible with EU law, but there are some obvious candidates: not only the power for the Scottish Ministers to amend EU law so that it makes sense after Brexit, as conferred by section 11, but also section 6 which provides that the principle of the supremacy of EU law, a key rule of EU law, will not apply to Acts of the Scottish Parliament once the UK leaves the EU. If section 6 came into force today, or orders were made pre-Brexit purporting to amend the terms of EU law, they would clearly be incompatible with EU law.
The Scottish Government obviously does not disagree that the Bill would be outside competence if it took effect pre-Brexit, as the Continuity Bill anticipates (and, in the Scottish Government’s view, avoids) this problem through clause 1(2), which provides that:
“In so far as any provision of this Act, or any provision made under it, would, if it were in effect before the relevant time, be incompatible with EU law, the provision is to have no effect until the relevant time.”
The “relevant time” is defined as the time at which the provision of EU law with which any part of the Continuity Bill (or an order made under it) would be incompatible ceases to have effect in Scots law as a consequence of UK withdrawal. The intention is therefore that, if a provision of the Continuity Bill would be unlawful because it breaches EU law, it would not come into effect until after the UK has left the EU and EU law no longer applies.
The Presiding Officer’s view
The Presiding Officer disagrees with the Scottish Government on whether the Scottish Parliament can “make provision now for powers which it is possible the Parliament will acquire in the future” – i.e. as a result of the UK leaving the EU. He concludes that it cannot, taking the view that a Bill should be assessed by reference to the legislative competence of the Parliament at the time the Bill is passed rather than in anticipation of what the position might be in future. His view is that “legislation cannot seek to exercise competence prior to that competence being transferred … postponing the exercise of powers until a future date may change the legal effect of a Bill but does not resolve the question of its legal validity.”
If the Presiding Officer’s view is correct then the Scottish Parliament cannot pre-empt the Withdrawal Bill as intended.
The Scottish Government’s view
The Lord Advocate took the very unusual step of appearing before the Scottish Parliament on Wednesday 28 February to make a ministerial statement on the Continuity Bill, confirming his view that it is within the Parliament’s powers.
The Lord Advocate argued that it is “plainly not incompatible” with EU law for the UK to prepare its laws for the “inevitable consequences” of its withdrawal from the EU, and that it is therefore similarly not incompatible for the Scottish Parliament to do so.
The Lord Advocate also argued that the restriction on the Scottish Parliament legislating incompatibly with EU law was intended to prevent the Scottish Parliament placing the UK in breach of its legal obligations to the EU. Once the UK leaves the EU, and those obligations fall away, there is no reason to believe that the UK Parliament would have intended the Scottish Parliament to continue to be bound by EU law. Until then, the argument runs, the Continuity Bill would not do anything to put the UK in breach of its obligations as the relevant parts would not take effect until EU law no longer applied.
The conflict between these two positions was further debated before the Scottish Parliament’s Finance and Constitution Committee on Wednesday.
The view from Wales
It is also notable that the Presiding Officer of the Welsh Assembly (the “Llywydd”), Elin Jones AM, has taken the unusual step of publishing her opinion that the Welsh Government’s equivalent Bill – the Law Derived from the European Union (Wales) Bill – is within the Welsh Assembly’s competence. The constitutional settlement regarding which powers are devolved differs between Wales and Scotland, but the Welsh Assembly and Welsh Government are subject to the same rules regarding compliance with EU law.
The Llywydd noted three bases for her view that the Welsh Bill is within competence: first, and principally, the relevant powers would (as in the Continuity Bill) not come into effect until Brexit happens; second, Brexit will definitely happen; and third, at that point the requirement that devolved bodies comply with EU law will cease to apply.
The second factor seems to be where the Llywydd differs from the Presiding Officer. The Llywydd takes it as a matter of fact that Brexit will happen and that EU law will cease to apply. The Presiding Officer, by contrast, noted that the devolution settlement is presumed to “fluctuate over time” but that the Scottish Parliament cannot legislate on the basis that “it assumes it will be legally able to act in the future” – i.e. it cannot assume that Brexit will definitely happen and that the restriction on competence relating to EU law will cease to apply.
In the early days of the debate over the Scottish independence referendum we published a series of posts on the ways in which the competence of a Scottish Parliament Bill can be challenged in the courts: see here, here, here and here. Unless the UK and Scottish (and Welsh) Governments can reach agreement on the terms of the Withdrawal Bill, it seems likely that the Continuity Bill and its Welsh counterpart will be enacted. It also seems likely that, in that event, at least one of the Bills would be referred to the Supreme Court (by the UK Law Officers, unless the devolved officers took that step proactively).to rule on its competence. For more on what that process would involve, see Part2 of our earlier series.
From 6 April 2018 all payments in lieu of notice will be taxable, whether contractual or non-contractual. Income tax and class 1 national insurance contributions will be due on the amount of basic pay that an employee would have received if they had worked their notice in full.
What are the current tax rules on payments in lieu of notice?
Currently, if you have a contractual right to make a payment in lieu of notice (‘PILON’), that payment is subject to income tax and national insurance contributions (‘NICs’).
If you don’t have a contractual right to make a PILON (because there is neither an express term in the employment contract nor an established custom and practice of making a PILON), any payment made in respect of an employee’s notice entitlement is generally regarded as ‘damages for breach of contract’ and the first £30,000 can be paid tax-free and without deduction of NICs.
What tax rules will apply to payments in lieu of notice from April 2018?
From 6 April 2018, all payments in lieu of notice will be taxable. The principle is relatively straightforward but there is a complex statutory formula for calculating the sum that should be taxed, known as ‘post-employment notice pay’ (‘PENP’). PENP is, broadly, the salary the employee would have received during any unworked period of notice minus any contractual PILON. It is calculated by reference to:
Basic pay only (before any salary sacrifice), disregarding bonus, overtime, commission, benefits in kind etc.; and
How much statutory or contractual notice (whichever is longer) the employer is required to give to terminate the contract.
PENP is subject to income tax and NICs in full. The balance of the termination payment is eligible for the £30,000 tax exemption and full NICs exemption (provided it is an ex gratia payment).
Statutory redundancy payments are exempt from PENP calculations and qualify for the £30,000 tax exemption, provided they are genuinely paid on account of redundancy.
The new rules will apply only where employment terminates on or after 6 April 2018.
There may be significant tax implications for non-contractual PILONs made from April 2018. For example:
An employee’s employment is terminated without notice on 30 April 2018. The employee is paid £5,000 monthly (basic pay); has a 3 month notice period; and there is no contractual PILON. They receive £35,000 compensation on termination. This an ex gratia damages payment, not linked to any contractual terms such as bonus entitlement.
Under the current rules, the whole compensation payment qualifies for the £30,000 exemption. Income tax is due on the balance of £5,000.
Under the new rules, income tax and NICs (both employer and employee) are due on the PENP of £15,000. The balance of £20,000 qualifies for the £30,000 exemption.
And from April 2019?
Currently if a termination payment qualifies for the £30,000 exemption, tax is due on any excess over £30,000 but no NICs are payable. From April 2019, employer NICs will also be due on the balance over £30,000. With employer NICs currently at 13.8% this will significantly increase the cost of some termination payments.
All employers should be aware of the new rules and think about how they might impact on termination negotiations. It seems that PENP will need to be calculated for each employee whose employment is terminating including those with contractual PILON clauses (although we are still waiting for guidance from HMRC).
Where there is currently no contractual PILON clause:
Making a PILON where the termination date is 6 April or later will potentially result in significantly increased costs for both employer and employee.
Consider whether to exit any employees prior to April 2018 to take advantage of the more favourable tax position.
Think about including PILONs in contracts going forward. Having a PILON clause allows a payment in lieu of notice to be made without being in breach of contract, thereby preserving any post-termination restrictions. There will no longer be any tax benefit in not including one.
Please get in touch with your usual Brodies contact if you would like to discuss the impact of the new tax rules on your termination arrangements. Workbox users will also find the sections on Tax on Termination Payments and Settlement Agreements useful.
It’s International Women’s day! The colour to celebrate today is purple. Surprisingly International Women’s Day started as far back as 1908. In some countries it is a national holiday and is celebrated as an equivalent to mother’s day.
Perhaps today’s International Women’s Day is the most relevant one yet following the seismic Times Up campaign in Hollywood and the movement towards narrowing gender pay gaps. This year’s campaign theme is #PressforProgress which highlights feminism and international efforts to achieve wide-scale gender parity.
So when it comes to women in law, where did we start and where are we now?
There is great history project known as the First 100 Years supported by the Law Society and the Bar Council in England which is charting the journey of women in law since 1919. It is sponsored by a charity founded to inspire the future generation of women in the profession. The Sex Disqualification (Removal) Act 1919 paved the way for women to become lawyers for the first time.
Nearly one hundred years on, the legal profession in Scotland is well populated by women. Looking round the room at the most recent Scottish Family Law Association conference which is held each year in November, it is clear to see that most family lawyers in Scotland are women. As part of the family law team at Brodies, I am proud to say I am one of ten female lawyers in our team, so I am glad to form part of the legal profession where there appears to be no lack of parity. It is clear to see we have come a long way since 1919, but with more #PressforProgress hopefully we will see more areas of the legal profession populated by women and the question of gender assigned to the past.
I left school aged 18 and joined Brodies in June 2016, on a business and admin apprenticeship through You Train, one of Brodies’ training partners. I was placed in the Debt and Asset recovery team in the Glasgow office where I carried out daily tasks such as raising court actions and preparing service of court actions. As well as my day-to-day debt recovery work I also had to complete seven modules for my apprenticeship in order to gain a level 3 qualification in Business and Administration. These modules gave me an understanding of collections techniques, the difference between consumer and commercial debt and bankruptcy and liquidation.
After I gained this qualification, I was offered a full team position within my current team, and it was at this point that I started to think about what I wanted to do on a long term basis. My line manager was really encouraging and persuaded me that I had the potential to train as a paralegal.
I decided to pursue paralegal training in Debt and Asset recovery. This qualification is run by CLT Scotland together with the University of Strathclyde, and I’m hoping to graduate by September 2018. Since training with CLT Scotland I have developed hugely within my current role. I now have my own case load which allows me to communicate with several different clients and carry out a wide variety of tasks that I was unable to complete without assistance, just a couple of months ago.
The team I work with are great; they made me feel comfortable from the start and I felt settled within a matter of days. The continuous support and guidance I get from them encourages me to push myself further. I really enjoy the fast-paced environment of the team, it plays to my strength and creates a great atmosphere to work in. My line manager is focused on my development for the future and we continue to discuss my options for further studies after I have gained my paralegal qualification. I’ve already looked into studying law part-time at the University of Strathclyde and I hope to start my studies in May 2019.
Like a lot of people that leave school at 18, I wasn’t 100% sure what I wanted to do with my career, so for me, being part of a modern apprenticeship scheme gave me the best of both worlds; the opportunity to learn new skills and gain a qualification whilst gaining the practical – and very valuable – experience of being in a working environment.
This blog was written by Hannah Chalmers, trainee paralegal in Brodies’ business disputes and asset recovery team.
This week the government has published a report on how it makes decisions about which vaccines to fund. For a long time, charities and campaigners have been lobbying for this report to be published. It also follows calls for greater transparency about why a vaccine to protect children against Meningitis B was not made more widely available and an 820,000 signature petition calling for all children to be vaccinated following the death of 2 year old Faye Burdett in 2016, who was not offered the vaccine because she was “too old”.
A public consultation will now run until 21 May 2018.
This is not the first time vaccinations and whether they are recommended by the government has been the subject of widespread controversy. It is not that long ago that the MMR vaccine was under the spotlight and despite the fact it was funded and recommended by the government, many parents chose not to give their children it.
So what happens if a government recommended vaccine is available, but parents can’t agree on whether their child should have it?
The law places a responsibility on those with parental rights and responsibilities to safeguard and promote their child’s health, development and welfare; and it gives them corresponding rights to fulfil such responsibility, independently of anyone else with parental rights and responsibilities, including in most cases the other parent. A duty is placed on such persons, in reaching any major decision involving a child to take account of the views of that other person, but:
there are no set definitions of what constitutes a major decision (could this include the giving of particular vaccine or not?); and
nothing that dictates that such decisions can only be taken and then implemented with mutual consent of two parents, each of whom have such parental rights and responsibilities.
If two such parents cannot agree, they may find themselves having to ask the court to either prevent or allow a course of action or event to take place, such as the giving of certain medical treatment or indeed a vaccination. If a court is being asked to decide whether or not that should happen, one may need to lead evidence from medical experts; and if the issue in dispute is in relation to a vaccine, whether or not it is recommended by the government will be a factor that one side asks to be taken into account. However, even between medical experts, opinion can very widely and how well placed is a Judge, trained in law not medicine, to make such a decision? They might not be best placed to, even by their own admission, but in the event that parents bring such a dispute before the court, the Judge can and will be forced to make a decision.
The interpretation of planning policy is a key issue in the determination of planning applications.
The meaning of “fully addressed” might seem straightforward, but it ended up being debated in the English Court of Appeal.
In June 2015 a written ministerial statement was made by the Secretary of State for Communities and Local Government (and does not therefore apply in Scotland). It set out new considerations for applications for planning permission for wind turbines.
It included a statement that local planning authorities should only grant planning permission if:
following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.
Mr Holder, a member of a local group of objectors challenged the grant of planning permission for a wind turbine by Gelding Borough Council. He submitted that a planning impact can only be “addressed” if it is eliminated or resolved.
The Court disagreed. They showed knowledge of the realities of the planning system, noting that it is rarely the case that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits:
Therefore, in the planning context the natural meaning of “addressed” is “sufficiently addressed”; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits.
“and therefore has their backing”
The Court also pointed out that “fully addressed” could not be removed from the immediate context of the sentence in which it appears.
The Statement confirmed that the rest of the sentence – “and therefore has their backing” – requires the planning authority to make a judgment whether a proposal has the backing of the affected local community.
The Court stated:
In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal.
As it’s about the exercise of planning judgment, the Court did not explain how the “balance of opinion” is identified. It did caution against too much weight being given to a vocal minority rather than a silent majority:
Put another way, the Statement does not elevate those members of the local community who have views which are the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.
National policy in relation to renewable energy was also relevant. The Court recognised that although the Statement is intended to be additional policy guidance, it is plainly not intended to be completely at odds with national policy in relation to renewable energy.
In the Court’s view, taking the objector’s interpretation would result in many more cases of conflict with national and local policy in favour of renewable energy.
The Statement would be “hollow” if it was outweighed and overridden by other very weighty factors in national and local policy. Conversely, if local planning authorities applied the Statement and treated national and local policy as overridden, that would have the effect of undermining national and local policies to a significantly greater degree that the Secretary of State can have intended.
These were all factors which weighed against the interpretation suggested by the objector.
This decision is a useful reminder to pay close attention to not just a phrase in a policy, but also the surrounding text and overall context.
It’s not necessarily as simple as looking up the dictionary.
The Scottish Government published the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“Continuity Bill”) on Tuesday 27 February, something it previously announced it would need to do in the event that agreement could not be reached with the UK Government on amendments to the EU Withdrawal Bill (“Withdrawal Bill”). While discussions on the Withdrawal Bill are still ongoing, the Scottish Government has taken the view that it needs to start preparing for an unsuccessful outcome.
Our next post will cover the arguments about whether the Continuity Bill would be within the Scottish Parliament’s legislative competence, but we will first briefly consider why the Scottish Government considers the Continuity Bill to be necessary, and what it does.
What are the perceived issues with the UK Bill?
The Withdrawal Bill, which is currently passing through the UK Parliament, is intended to repeal the European Communities Act 1972 and so give effect to Brexit. However, it will keep in place all existing EU laws and EU-derived laws as they apply in the different jurisdictions of the UK at the point of Brexit. This will keep all current law in place pending any future decision of Parliament (or, where appropriate, a devolved legislature) to amend or repeal it in future. The alternative would be the risk that a lot of EU law could disappear from UK law overnight, leading to confusion about what the law is and potentially ‘gaps’ in some key areas.
The Withdrawal Bill will also allow ministers to amend this “retained EU law” so that it continues to make sense after the UK is no longer in the EU.
However, much of EU law applies in areas that are not specifically reserved to the UK Parliament under the Scotland Act 1998, such as agriculture and fisheries. The Scottish Parliament and Scottish Government can make laws and take action in these areas to the extent that EU law allows (and the same is true, though to varying extents, in Wales and Northern Ireland). The Withdrawal Bill as drafted simply replaces the restriction on the Scottish Parliament legislating incompatibly with EU law with one that stops it making laws that modify “retained EU law” (other than in matters for which it is responsible under the current settlement, such as the administration of farm subsidies).
The Scottish Government believes that this is inconsistent with the principle in the existing devolution settlement relating to the ‘split’ of power between Holyrood and Westminster, which assumes the Scottish Parliament will have the power to legislate in an area unless it is explicitly reserved to the UK Parliament.
The UK Government’s position is that the devolution settlement assumed that, since the whole UK had to comply with EU law (e.g. the harmonised rules on animal welfare and environmental protection), there was nothing the Scottish (or indeed UK) Parliament could do in these areas that would disrupt the internal operation of the UK economy. Outside the EU, different parts of the UK adopting different rules in these areas could complicate intra-UK trade.
For more on the Withdrawal Bill and the controversies around it, see here for the briefing we issued in September last year. It is perhaps indicative of the impasse on the Bill that there has still not been much movement on the issues we identified then.
The Withdrawal Bill will alter the limits on the Scottish Parliament’s legislative competence, which by convention the UK Parliament will not do without the consent of the Scottish Parliament. The UK Government has acknowledged this convention will in principle apply to the Withdrawal Bill, though it should be stressed that this does not mean the UK Parliament would be legally unable to pass the Withdrawal Bill (even in its current form) without consent – there is no veto. See here for our commentary on a similar issue when it arose in relation to the Gina Miller Brexit case.
The Scottish Government, and the Scottish Parliament’s cross-party Finance and Constitution Committee, have both suggested that the Withdrawal Bill as currently drafted is incompatible with the devolution settlement, and that legislative consent should therefore be refused.
What is the Continuity Bill for?
If legislative consent is indeed refused, the UK Government would broadly have two options:
Amend the Withdrawal Bill to remove the limitation placed on the Scottish Parliament’s competence in relation to retained EU law, and presumably also the powers currently conferred on the Scottish Ministers to amend legislation in relation to matters for which they are currently responsible. The Bill might also be amended to exclude Scots law, outside of reserved areas, from the scope of retained EU law.
Proceed with the Withdrawal Bill notwithstanding the lack of consent, without removing the limitation on the Scottish Parliament’s ability to legislate in areas where its competence is currently restricted by EU law (though perhaps with some amendment to try to deal with some of the objections, even if those were not enough to satisfy the Scottish Government).
The Continuity Bill is premised on the first scenario, as it would take over the job of converting EU law in all non-reserved areas into Scots law, and give the Scottish Government equivalent powers to those conferred in the Withdrawal Bill – i.e. to make amendments that would enable that law to function properly post-Brexit.
In the second scenario a number of significant legal and constitutional questions would arise, including as to the relationship between the Withdrawal Bill and Continuity Bill (assuming the latter was still passed). However, those questions would be extremely technical and complex, and the political process has not (yet) reached the point where either side is suggesting that outcome, so we will leave those to be dealt with if and when that hypothetical situation arises.
Part 2 of this post will deal with the argument over whether the Continuity Bill is within the legislative competence of the Scottish Parliament.
“Here’s your wig, and your gown. You’re presiding over court six, these are your cases.”
“Sorry, my gown and my what?”
Excellent – having not been blessed with a head fit for hats, a wig is the last thing I want to be wearing. At least it’s just the kids in the court room.
“There are about 30 parents and teachers in there. So say a few words at the end about how proud you are of everyone that’s taken part. Oh and remember to give your verdict. And put the witnesses on oath. And try not to leave anyone feeling like they’ve lost. You can wait in the Library with the other (real!) Sheriffs.”
I really should have asked more questions before agreeing to this. Too late now though. In for a penny…
After weeks of hard work, grappling with a complex scenario, learning legal concepts and court room procedure, primary 6 and 7 pupils competing in the Schools Mock Court Case Project converged on Glasgow’s Salt Market shortly before Christmas to pit their wits against each other in the formidable High Court.
The Mock Court Project sees pupils acting as either Pursuer or Defender in a fictional civil court action. This year the scenario saw an out of control house party, a garden ruined by a rampaging horse, windows smashed, carpets destroyed, a ‘Ming’ vase broken and the resulting insurance claim being disputed by the insurance provider. Credit card fraud, online security, insurance terms and conditions, concepts of blame, school bullies, horse riding, even the impact of wood rot on the structural integrity of a garden fence were just some of the things the kids could get their teeth into. The complexity of the scenario ensuring ample scope for a range of different approaches to the same question.
Before reaching the High Court, teachers and their pupils had invested many hours in the Project. Witness statements and questions had been written and rehearsed; presentation skills honed; gowns, wigs and witness costumes designed and made from scratch; and newspaper front pages created to document the story from first court appearance, through the trial to the verdict (in addition to providing a running commentary on BBC’s Strictly Come Dancing’s latest evictee in the case of the creative journalist in my own class). The variety of roles is matched by the skills that are developed through the process, which include: writing; problem solving; maths; arts; presentation skills; evaluating information and team work.
To help with the legal side of the scenario, each class is assigned an advisor – typically a trainee solicitor from a number of law firms that have signed up to support the Project. As the Project’s main sponsor, Brodies LLP are heavily involved and each year several trainees sign up to help, with some committing to advising several classes.
Assistance from legally-minded volunteers is essential to add context to often vague legal concepts. It is also a chance to make positive impressions with young people, encouraging them to consider careers that they may previously have thought were out of reach.
Back in court it was my turn to confront my own challenging scenario. Having heard and watched the “lawyers” test their witnesses and the evidence, whilst wearing knitted neon wigs (take note Faculty of Advocates) and elaborate hand-made gowns that proved the reach of Harry Potter’s wizarding world really knows no bounds, it was time for me to “decide the case in a way that leaves nobody feeling like they have lost”. Sixty seconds later, having delivered a carefully crafted, easy to understand verdict, I felt I had done exactly what was asked…