Holyrood 2016 – Manifestos on civil justice

Posted on April 28, 2016 by Iain Nisbet
Scottish_Parliament_2011

Credit: Barryob (wikimedia)

Just time before the election for a quick review of the parties’ views on various topics related to civil justice – based on my own skim reading of the manifestos.

First, some areas of agreement.  Both Labour and SNP are in favour of abolishing fees for access to the Employment Tribunals.

Labour, SNP and the Conservatives all express a desire to review or reform Legal Aid, with the Greens pressing for the Scottish Parliament to “enhance” it.

Also, all parties seem agreed that this is not something they need to pay much attention to – and have agreed not to say that much about civil justice at all.

Labour commit to repealing the controversial Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

Also controversial has been the Named Person proposals, which attract a variety of responses.  SNP will “support” the Named Person scheme, Liberal Democrats will keep it under review, Labour will “pause” it, while Conservatives will “reverse” it and set up a Crisis Family Fund in its place.  No mention in the Green manifesto.  Lib Dems also promise to enshrine the UN Convention on the Rights of the Child in Scots law.

Freedom of Information gets a look in, with the Greens pressing for routine reporting online, and the Lib Dems seekings its extension to cover private firms delivering public services (both excellent ideas).

Some serious law reform gets a look in with SNP promising reforms to succession law and a consultation to the regulation of the legal profession, and the Tories promoting the work of the Scottish Law Commission and their reports – especially on defamation law.

So, there you have it.  I hope this helps you decide where to place your crosses and numerals next week!

Posted in Child Law, Defamation, Employment Law, News, Politics, Scottish Parliament | Tagged , , , , , | Leave a comment

Burger vans and trading bans

Posted on September 9, 2015 by Iain Nisbet

According to the Scotsman (“Burger van owners claim ban infringes human rights”), a legal challenge has been launched against North Lanarkshire Council‘s policy which prohibits fast food vans from trading within a 250-metre radius of any of its schools. The policy is said to be part of the Council’s efforts to combat childhood obesity. The headline refers to the fact that five van owners are apparently claiming that their human rights, as well as those of the pupils, have been infringed by the exclusion zone.

Exclusion zones of this sort are also in place in Glasgow City Council and East Ayrshire Council, but this is thought to be the first challenge of its kind in Scotland.

Scott Blair, the advocate representing the van owners, is reported to have argued that factors other than child health had to be taken into account when ascertaining whether the ban was legally binding.

“Everybody has the right to choose what kind of food they want to put into their body, no matter how healthy or undesirable that food may be. Those under 16 may well be influenced by what their parents eat but everybody has a choice as to what they want to eat.”

“There may be nutritional guidelines on school meals but pupils have the right to choose to bring food in from outside the school.”

The nutritional guidelines in question are Healthy Eating in Schools: A Guide to Implementing the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2008.

Legally this raises an interesting question.  As Mr. Blair indicates, food or drink brought onto school premises by pupils is exempted from the scope of Section 56A of the Education (Scotland) Act 1980 (inserted by the Schools (Health Promotion and Nutrition) (Scotland) Act 2007).  However, Section 2A of the Standards in Scotland’s Schools etc. Act 2000 (also inserted by the 2007 Act) imposes a general duty on education authorities to ensure that their schools are health promoting.

In relation to food and drink actually served up by school canteens, the terms of the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2008 prescribe various nutritional requirements for food and drink in schools.

Requirements for school lunches include:

  • not less than 2 types of vegetables (not including potatoes) shall be provided every day;
  • not less than 2 types of fruit shall be provided every day;
  • bread shall be provided every day;
  • oily fish must be provided at least once every 3 weeks;
  • no savoury snacks shall be provided except –
    • (a) savoury crackers,
    • (b) oatcakes, or
    • (c) breadsticks;
  • no confectionery shall be provided and cakes, biscuits and puddings must not contain any confectionery;
  • deep fried food shall not be provided more than 3 times in a week;
  • chips may only be served as an accompaniment to other food.

It is not clear whether this last requirement rules out the service of a roll and chips or not. While deep fried food is permitted thrice weekly, the ban on confectionery rules out that Scottish staple, the deep fried Mars bar. Further nutritional standards are imposed, including a list of permitted drinks, which effectively bans Irn-Bru and Sunny-D from schools.

Gratifyingly, the regulations do not apply to food or drink provided as part of a medically recommended diet for any pupil. Finally, schools must ensure that drinking water is provided free of charge at all times to pupils on the premises of public schools.

Meanwhile, the legal battle over what takes place outwith the school gates continues.  In the words of “piker20” on the Scotsman comments page: “Buy one get type 2 free”!

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National Priorities in Education – what does the law say?

Posted on August 20, 2015 by Iain Nisbet

On Monday, I was fortunate to be in the audience while the First Minister gave a speech on education.  In that speech, she set out “twin priorities of improving attainment for all children and tackling the attainment gap between children in deprived and better off areas.”  She also announced that the Scottish Government were now “developing a National Improvement Framework”.

Further details are promised in the forthcoming programme for government, but this seemed a good moment to review the existing statutory improvement framework and priorities in Scottish education.

Raising Standards

Section 3 of the Standards in Scotland’s Schools etc. Act 2000 imposes a duty on the Scottish Ministers to “secure improvement in the quality of school education which is provided for Scotland” and a complimentary duty on education authorities to “secure improvement in the quality of school education which is provided in schools managed by them”.

National Priorities in Education

Section 4 of the 2000 Act requires the Scottish Ministers – following a period of consultation – to define “priorities in educational objectives for school education provided for Scotland”.  These priorities are currently set out in the Education (National Priorities) (Scotland) Order 2000, and are as follows:

  1. to raise standards of educational attainment for all in schools, especially in the core skills of literacy and numeracy, and to achieve better levels in national measures of achievement including examination results;
  2. to support and develop the skills of teachers, the self-discipline of pupils and to enhance school environments so that they are conducive to teaching and learning;
  3. to promote equality and help every pupil benefit from education, with particular regard paid to pupils with disabilities and special educational needs, and to Gaelic and other lesser used languages;
  4. to work with parents to teach pupils respect for self and one another and their interdependence with other members of their neighbourhood and society and to teach them the duties and responsibilities of citizenship in a democratic society; and
  5. to equip pupils with the foundation skills, attitudes and expectations necessary to prosper in a changing society and to encourage creativity and ambition.

This section also allows the Scottish Ministers to define and publish measures of performance for each of these priorities.  More on these later …

Annual Statement of Improvement Objectives

These national priorities feed directly into the next level, which falls to the education authorities.  Section 5 of the 2000 Act requires education authorities to (again following consultation) prepare and publish an annual statement of education improvement objectives.  The objectives must be set in respect of each of the national priorities and by reference to any measures of performance published by Minsters.

The education authorities must thereafter prepare and publish an annual report detailing their success in meeting the objectives set by them in the most recent statement of education improvement objectives.

School Development Plans

From the authority level, we move one step closer to the pupils.  Section 6 of the 2000 Act then requires each public school (following consultation) to prepare – annually – a school development plan which must take account of the objectives found in the annual statement of education improvement objectives.  This will be followed by an annual report on the implementation of the plan.  Parents of pupils must have access to the school development plan upon request and without charge, and must receive a summary of the plan automatically (i.e. without having to ask for one).

Review of School Performance

Section 7 of the 2000 Act then completes the chain of target setting and monitoring, by requiring each education authority (following consultation) to define and publish “as respects quality of education provided, measures and standards of performance for the schools managed by them;”.  From time to time, the education authority shall review the quality of education provided by a particular school and, if the school is not performing at a satisfactory level, then they must take such steps as may be required to remedy the problem.

Her Majesty’s Inspectors

Her Majesty’s Inspectors of Education (now a component part of Education Scotland) have long enjoyed powers in terms of Section 66 of the Education (Scotland) Act 1980 to inspect schools in Scotland.  To this, Section 9 of the 2000 Act added the power to inspect education authorities.

Sections 10A to 10C of the 2000 Act provide a process whereby, if an education authority is failing to secure improvements in education, the matter can be referred by HMI to the Scottish Ministers who may serve a preliminary notice.  If the response to that notice is unsatisfactory, then an enforcement direction requiring the authority to take specified actions to remedy the failure.

Equivalent provisions in Sections 66B to 66D of the 1980 Act provide similar powers in relation to schools which are failing to secure improvement.

Guidance

Finally, Section 13 of the 2000 Act allows the Scottish Ministers to issue guidance to education authorities in relation to their functions as set out in this framework.  To date, the only such guidance issued has been “Education Guidance Issued Under Section 13 of the Standards in Scotland’s Schools etc Act 2000 on Gaelic Education” which was sent to Directors of Education by Peter Peacock MSP, the then Minister for Education & Young People, on 17 September 2004.

National Framework for Improvement

So, there is already a fairly detailed and rigourous “national framework for improvement” in place.  Scottish Minsters define national priorities for education and performance measures for each; education authorities incorporate these into their annual statement of education improvement objectives and then report on whether these have been acheived; and each school draws up a school development plan based on the objectives and reports to parents on what they have done to implement the plan.  If insuffient improvement is achieved, then enforcement measures can be taken.  This should be easily sufficient to drive and monitor the improvements the First Minister is seeking.

National Priorities

The national priorities for education could be said to already encompass the twin priorities set out by the First Minister in her speech, but in any event the Scottish Ministers are at liberty to set new national priorities. This needs the consent of the Scottish Parliament and must follow a process of consultation, but neither should prove objectionable or difficult.

Indeed, since the power to set national priorities was created, they have only been used once (in 2000).  The national priorities are certainly due a spring clean.  If nothing else, some of the terminology now seems particularly outdated.  The national priorities for education for Scotland still refers to pupils with special educational needs, almost a decade after that term was removed from Scots law.  They refer to Gaelic as a “lesser spoken language” which while accurate is probably not how this Government would choose to refer to the Gaelic language.

Indeed, the whole concept of national priorities for education seems to have fallen by the wayside.  Though very much part of the legal duties imposed on both Ministers and authorities, you hardly hear people talk about them.  The Scottish Ministers have not defined performance measures for the national priorities since 2003, and I strongly suspect that no-one is still trying to count improvements in the numbers of pupils reaching assessment milestones against the 5-14 curriculum (among other measures specified).

Incidentally, the national priorities regarding improving measures of acheivement and the performance measures set out actually fit very well with the other idea of national assessments, set out by the First Minister on Monday.  Whether the return of league tables for Primary Schools is a price worth paying for keeping tabs on schools’ performance is another question for another day …

If you have children of school age, why not ask for a copy of their school’s development plan and the authority’s annual improvement objectives and see if you can find the references to the national priorities within those documents?  Maybe you will find them (or perhaps not).

The website set up by the (then) Scottish Executive at www.nationalpriorities.org.uk is no longer maintained or even owned by them and has fallen into the hands of “cybersquatters” who have filled the page with ad links.  It’s just a bit embarrassing!

However, it would be the work of a moment to draft a fresh order to lay before Parliament updating and redefining the national priorities.  They then automatically slot into a pre-existing mechanism for driving improvement in the standards in Scotland’s schools and avoid much unnecessary and counter-productive bureaucracy, time, money and effort in setting up new systems.

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Deus ex Lege (W.S. Gilbert and the law)

Posted on July 9, 2015 by Iain Nisbet

lordchancellorAs you may know, I am a big fan of the works of Gilbert and Sullivan. I am also a lawyer. Imagine how pleased I was then to discover an academic paper on W.S. Gilbert and both his view of the law and the law’s view of his work!

From that august publication, the Oregon Law Review in 2004, Professor Jeffrey G. Sherman brings us “Law’s Lunacy: W.S. Gilbert and His Deus ex Lege“ – 46 pages of a near comprehensive treatment of Gilbert’s legal philosophy. I heartily recommend this article.

W.S. Gilbert was himself a barrister before he was a famous playwright, but not a very successful one.  However, it meant he was well placed to ridicule and satirise the legal system and the legal profession.

PoliceThe article is, understandably, concerned with pronouncements from the US Courts and their use of Gilbert’s works, which leaves open the possibility of a gifted British blogger writing an equivalent piece from a UK perspective. Someone who agrees that …

The Law is the true embodiment. Of everything that’s excellent. It has no kind of fault or flaw, And I, my Lords, embody the Law.

-Iolanthe

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A Constitutional Convention?

Posted on June 3, 2015 by Iain Nisbet

The Lord Purvis of Tweed, otherwise known as Jeremy Purvis, was the MSP for Tweeddale, Ettrick and Lauderdale from 2003 to 2011.

On Monday 1st June 2015, his Constitutional Convention Bill had its first reading in the House of Lords. It is, of course, a long way from there to becoming an Act of Parliament and I dare say that the Bill will fall long before then.

However, the Bill contains all sorts of interesting ideas and is just the sort of framework for doing all this Smith, Smith Plus, Devo Max, or whatever, properly.  Lord Purvis is quoted as saying that he wanted to see an end to the “make do and mend” approach to constitutional reform, and deliver a “sustainable, balanced devolution settlement that works for the whole UK.” And he is absolutely right in that.

But what does the Bill actually say?

The Long Title proclaims that it is “A Bill to Make provision for a convention to consider the constitution of the United Kingdom; and for connected purposes.” and it is commendably brief.

Section 1 provides that a Constitutional Convention is to meet, no later than 31 December 2016, under “fair and transparent rules about how the convention is to operate and how evidence is to be adduced”.

Section 2 gives us the terms of reference, i.e. what is the Convention to consider?

(a) the devolution of legislative and fiscal competence to and within Scotland, England, Wales and Northern Ireland,

(b) the devolution of legislative and fiscal competence to local authorities within the United Kingdom,

(c) the reform of the electoral system,

(d) the reform of the House of Lords,

(e) constitutional matters to be considered in further conventions, and

(f) procedures to govern the consideration and implementation of any future constitutional reforms.

Section 3 requires the Convention to report within a year with its recommendations, and gives the Secretary of State six months to lay responses to each recommendation before both Houses of Parliament.

Section 4 requires that at least half of the members of the Convention must be ordinary people, that is “not be employed in a role which can reasonably be considered to be political”

And section 5, 6 and 7 are just procedural and technical filler.

So, that’s it in a nutshell – there is much to commend this, and little to object to.

Why not write to your MP and ask them to do what they can to support this Bill?

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UPDATE: democracy arrives at the House of Lords

Posted on May 29, 2015 by Iain Nisbet

A brief update as to the franchise for the EU referendum.  The franchise is based upon those eligible to vote in UK general elections – this is why EU citizens are not allowed to vote, even though they can vote in devolved, local and European elections.

However, for the EU referendum, members of the House of Lords (usually excluded from general elections) will be able to vote.

This is very important, as otherwise we would be deprived of the votes of the following persons:

  • John Sentamu, Archbishop of York;
  • Jeffrey Archer;
  • Floella Benjamin off of Play School;
  • Alan Sugar;
  • Karan Bilimaria, founder of Cobra Beer;
  • Sebastian Coe;
  • Lord Cameron of Lochbroom;
  • Julian Fellowes;
  • Tanni Grey-Thompson;
  • Lord Hope of Craighead;
  • Jack McConnell;
  • Helena Kennedy;
  • Andrew Lloyd-Webber;
  • Lord Sewel (of Sewel motion fame);
  • David Steel;
  • Jim Wallace; and
  • Baroness Warnock.
Posted in Constitutional Law, European Law | Tagged , , | 1 Comment

Should the United Kingdom remain a member of the European Union?

Posted on May 29, 2015 by Iain Nisbet

eu-63985_640

“Should the United Kingdom remain a member of the European Union?”

That is the question proposed in Section 1(4) of the European Union Referendum Bill (HC Bill 2). The equivalent question in Welsh will also be posed for voters in Wales.  No, no Gaelic in Scotland, no Cornish in Cornwall, and definitely no Spanish in Gibraltar.

This hands a perceived advantage to the pro-Europeans as they get to identify as the “Yes” camp.  This was thought to be of some significance in the recent independence  referendum in Scotland – although referenda in Gibraltar have survived with healthy majorities for “No”, and of course it was the “Noes” that ultimately prevailed last year in Scotland.

The wording includes the insertion of the term “remain” suggested by the Electoral Commission, in case some people were not aware that this was already the case. Fair enough. By that logic, the referendum question in 2014 should have been: “Should Scotland become an independent country?” Maybe next time …

The language of the referendum is less important perhaps when the result is certain.  Thus, in the Falklands in 2013, the question was “Do you wish the Falkland Islands to retain their current political status as an Overseas Territory of the United Kingdom?”, but may as well have been asking they wanted to become a suburb of Buenos Aires. Astonishly, 3 votes out of over 1,500 were cast for “no”. According to the Guardian (12 March 2013), some islanders were talking about rooting those three out and shipping them off to Argentina – their reputations “destroyed”.

A referendum with a similarly sure-fire outcome was the one in Gibraltar in 2002, which came with an alarmingly long preamble, before cutting to the chase, with this question: “Do you approve of the principle that Britain and Spain should share sovereignty over Gibraltar?”  In that case, the “Yes” campaign mustered 187 votes out of nearly 100 times that many cast.

Past Scottish referendum questions have been slightly more suspect in their wording, with both questions in the 1997 vote on devolution employing a “Do you agree …” formula weighted towards the Government’s preferred option.  In 1979, the question relied on the electorate having done some pretty heavy reading by way of preparation for the posed: “Do you want the Provisions of the Scotland Act 1978 to be put into effect?”

Of course, ultimately the question is less important than the answer given. Which, for the avoidance of doubt, should be an emphatic “Yes”.

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Referendum Franchise

Posted on May 26, 2015 by Iain Nisbet
Flag of the Commonwealth

Flag of the Commonwealth

So, we now know who gets to vote in the EU referendum. To summarise:

  • 16 and 17 year olds do not get to take part;
  • also, under 16s do not get to take part;
  • EU citizens residing in the UK do not get to take part;
  • unless they are from Malta, or Cyprus, or Ireland – then they do;
  • British ex-pats who moved away within the last 15 years do get to take part;
  • Commonwealth citizens in the UK also get to take part;
  • residents of Gibraltar may take part (unless they are monkeys);
  • residents of the Falkland Islands may not take part (even if they are penguins);
  • despite repeated warnings from the European Court of Human Rights, prisoners will not get to take part; and
  • SNP MSPs do not get to take part (if they also happen to be from France).

Hope that’s all clear?

This is, of course, in preparation for the promised in/out referendum on the UK’s continued membership of the Commonwealth, for which EU citizens will have the vote, but no Commonwealth citizens will.

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Voting Systems – a comparison of Eurovision and the Council of the European Union

Posted on May 23, 2015 by Iain Nisbet

79486-ukeurovisionsongcontestVoting in the Eurovision final

In all participating countries, the televoting and jury voting result in two ranked lists of all songs;

Televoters can vote via the official app, telephone and/or SMS. The voting window opens after the last song has been performed, and ends 15 minutes later. These votes determine 50% of the outcome and are gathered by the EBU’s voting partner digame;

Professional juries are also required to vote. They determine 50% of the outcome. The jury, which consists of five members (including a chairperson) is the same jury that voted in one of the Semi-Finals. They will watch live and rank all songs based on the second Dress Rehearsal, the so called Jury Final;

The EBU’s voting partner digame will determine the national result by merging these two ranked lists, and will award 12 points to the country with the best combined rank of the jury and the televoting, then 10 points to country with the second-best combined rank, etc. The country ranked 10th in the combined ranking receives 1 point;

Since traditionally only 12, 10 and 8-1 points are being given, countries ranked outside of the top-10 do not receive points. Also, televoters and juries cannot vote for the country they represent;

If there is a tie between two or more songs in the combined ranking between televotes and the jury, the song that obtain a better ranking from the televote will prevail over the other;

Based on the combined full ranking of all songs of televoting and jury voting, each country will distribute 1 to 8, 10 and 12 points; The combined results of jury voting and televoting will be presented on air during the Final by spokespersons in all participating countries. As usual, the points 1 to 7 will appear on screen. The spokesperson will then reveal 8, 10 and 12 points.

The full result, including the televoting and the jury result in every participating country will be published on Eurovision.tv after the Grand Final

Source: http://www.eurovision.tv/page/vienna-2015/about/voting

Qualified Majority Voting in the EU Council

From 1 November 2014 a new procedure for qualified majority voting applies in the Council. Under this procedure, when the Council votes on a proposal by the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, a qualified majority is reached if two conditions are met:

  1. 55% of member states vote in favour – in practice this means 16 out of 28
  2. the proposal is supported by member states representing at least 65% of the total EU population

This new procedure is also known as the ‘double majority’ rule.

Blocking minority

The blocking minority must include at least four Council members representing more than 35% of the EU population.

Special cases

When not all Council members participate in the vote, for example due to an opt-out in certain policy areas, a decision is adopted if 55% of the participating Council members, representing at least 65% of the population of the participating member states, vote in favour.

When the Council votes on a proposal not coming from the Commission or the high representative a decision is adopted if:

  1. at least 72% of Council members vote in favour
  2. they represent at least 65% of the EU population

Abstentions

An abstention under qualified majority voting counts as a vote against. Abstention is not the same as not participating in the vote. Any member can abstain at any time.

Source: http://www.consilium.europa.eu/en/council-eu/voting-system/qualified-majority/

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In/Out Referendum on Eurovision in 2016?

Posted on May 23, 2015 by Iain Nisbet

Lord Graham of Norton raised the prospect of an early referendum on Eurovision membership as he launched a diplomatic whirlwind to renegotiate Britain’s place in the Song Contest.

Speaking in Vienna, he said: “I want to make early progress. The sooner we get on with this, the better.”

He admitted that he had not encountered a “wall of love” during discussions, but he said: “We need to address the concerns of the British people. They are not happy with Electro Velvet. Frankly nor am I.”

He listed his main concerns as action to stem the tide of EU migrants to Britain by bringing in “commonsense restrictions” on their entitlement to vote for their home countries in the Eurovision finals. He also advocated scrapping “unnecessary and burdensome” rules and worries that the UK was yet again going to receive “nul points”.

Meanwhile, extravagantly attired seasoned Eurovision performer, known simply as “Farage” hit back at back at the Confederation of the British Music Industry – which has spoken out against a vote to leave Eurovision.

“I think they are wrong about this,” he said, adding that it was a “really big myth” that the UK could not sell MP3s to the rest of Europe if it exited the Song Contest.

Scotland’s First Minister Nicola Sturgeon argued that a vote to exit Eurovision should only be effective if all four countries in the UK voted to leave. She has further claimed that an “out” vote in a poll on Eurovision membership could justify a second referendum on an independent Scottish Top 40.

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