Howls of protest from the Scottish Grocers' Federation on the passing by the Scottish Parliament of the Tobacco and Primary Medical Services (Scotland) Bill.

The Bill will do some very exciting things. Specifically it will soon be a criminal offence:

• for a shop to sell cigarettes to anyone under the age of 18;
• for an adult to buy cigarettes on behalf of anyone under the age of 18; and
• for anyone under the age of 18 to buy (or attempt to buy) cigarettes.

Obviously, all of this applies to cigars, rolling tobacco etc. too.

Given that the age of criminal responsibility in Scotland is still 8, that could be some very young children saving up their pocket money to pay fines!

As part of the same drive to cut down on under-age smoking (still a big problem in Scotland - especially among girls), cigarette vending machines will be banned - as will displays of cigarettes in shops. All cigarette sales will in future be " under the counter".

Which is where the retailers have a problem. They want to keep their ciggies on display - there was even a petition in my local SPAR (which I did not sign). The small shops worry that it will affect sales.

Given that the legislation is designed to stop people smoking, it is a reasonable expectation that the number of cigarettes sold will diminish. The grocers are quoted as saying "SGF agrees with the Scottish Government that young people should not smoke and should be actively discouraged from doing so." - so long as it doesn't affect sales.

But the gloomy outlook may not be necessary - perhaps the money teens save by not buying cigarettes, they will simply spend on other products sold by small retailers like high-energy caffeine drinks; magazines with lots of pictures; and 5p plastic forks from the Chinese take-away.

Labels: Children, criminal law, News, Scottish Parliament

Good news, you can now read my most recent Yell.com blog post on the implications of the new Legal Services (Scotland) Bill. It's called "The future of legal services in Scotland" and deals with the possibility that banks and supermarkets will become the principal providers of legal services in the not too distant future.

Sounds like fun, no? Quickie divorce with your Cheerios, Sir?

Posted on Absolvitor: Scots Law Online.

Labels: law firms, Scottish Parliament, Yell.com Solicitors Blog

Breaking news from the Christian Legal Centre:

The deadline for Alison Davis to challenge the House of Lords' decision is today. Alison Davis's challenge claims that Lord Phillips, senior Law Lord at the time and now President of the Supreme Court was biased in favour of assisted suicide when he and the other four Law Lords made the decision that the law on assisted suicide was "unclear" and required offence-specific guidance for prosecutors concerned with deciding whether to prosecute a suspect for assisting the suicide of another person. Miss Davis's evidence centres on Lord Phillips' comments in The Daily Telegraph on 10th September 2009, in which he expressed "enormous sympathy" for terminally-ill patients who want to commit suicide, but need assistance to do so.

Lord Phillips said in his interview with The Daily Telegraph: "I have enormous sympathy with anyone who finds themselves facing a quite hideous termination of their life as a result of one of these horrible diseases, in deciding they would prefer to end their life more swiftly and avoid that death as well as avoiding the pain and distress that might cause their relatives."

Alison Davis of No Less Human will present a petition arguing that Lord Phillips' personal sympathy invalidates the House of Lords' last decision, in the same way that Lord Hoffman's links to Amnesty International did when he gave a judgment in the case regarding the immunity from prosecution of General Augusto Pinochet of Chile. The legal challenge states that the Purdy ruling is "vitiated by the principle of apparent bias", and that "the decision of the former House of Lords is 'unconstitutional' and usurps the powers of Parliament". It calls for the Supreme Court to be convened "to reconsider and hear fresh argument on the case of Purdy". The argument continues: "the expression of the private 'political' view of Lord Phillips in The Daily Telegraph after the judgement clearly raises a question in the minds of reasonable and informed people of apparent bias".

Miss Davis, a wheelchair user with spina bifida, hydrocephalus, emphysema, osteoporosis and arthritis, wrote a letter to accompany her case papers. She said: "The DPP's guidelines are unfair, unjust, and fatally discriminatory against suffering people, who deserve the same presumption in favour of life as any able bodied person would automatically receive. They have no place in a civilised society."

Campaigners, argue that Lord Phillips' personal sympathy for those who wanted to commit suicide means that the proposed interim prosecution policy should not be finalised. The changes made by the interim policy could make it easier for people to coerce their family members, friends or the people for whom they care into killing themselves.

The Lord Advocate, Elish Angiolini QC, has already indicated that no similar guidance will be issued in Scotland, stating that "The Crown recognises the importance of this issue, but any change in the current law related to homicide is properly a matter for the Scottish Parliament."

Posted on Absolvitor: Scots Law Online.

Labels: criminal law, House of Lords, Law and Ethics, News, Scottish Parliament, UK Supreme Court

Spotted on obscure blog (hey, it takes one to know one) "The Jacobite Intelligencer: Jottings of a Jacobite Antiquary" an article on "Why 'Devolution Max' is not enough", and at the foot of that article, the following:

Furthermore, few have realised that an independent Scotland would almost inevitably result in the disestablishment of that strange monster, the Church of Scotland. An independent Scottish Government would be unlikely to look with favour on the idea of an established church, especially given the growing population of Glasgow and its Catholic majority.

And my posted comment on that same point:

The Church of Scotland is not established. It is the national Church, but the Church of Scotland Act 1921 confirms its independence from the state in matters of discipline, doctrine, worship and government. The head of the Church of England is the Queen, the head of the Church of Scotland is Jesus Christ. As recently as the late 1990's, the Court of Session have confirmed this position. The Scottish Parliament (independent or not) is in no position to alter the constitutional position of the Kirk.

Strange, but true.

Posted on Absolvitor: Scots Law Online.

Labels: Ecclesiastical Law, Glasgow, Scottish Parliament

Good news, you can now read my most recent Yell.com blog post on the weighty topic of Scotland's constitutional future.

It was written in light of the Scottish Government's new white paper "Your Scotland, Your Voice", which is in no way a dig at any opposition parties.

The blog post is called "How many referendums does it take to change a constitution?" - which is a clever play on the ol' "How many [whatever]s does it take to change a lightbulb?" joke. Here are a few of my favourites, feel free to add your own...

• How many politicians does it take to change a lightbulb? - None. They only promise change.
• How many Marxists does it take to change a lightbulb? - None. The seeds of revolution and change are within the lightbulb itself.
• How many psychologists does it take to change a lightbulb? - Just one. But the bulb has to really WANT to change.

Posted on Absolvitor: Scots Law Online.

Labels: News, Scottish Government, Scottish Parliament, Yell.com Solicitors Blog

You can now read my latest Yell.com blog regarding the proposed changes by East Renfrewshire Council to the catchment area of St. Ninian's High School. The blog is titled "School catchment area division".

Which works on a number of levels, you see...

Posted on Absolvitor: Scots Law Online.

Labels: Education Law, Glasgow, News, Scottish Government, Scottish Parliament, Yell.com Solicitors Blog

In this article in the Scotsman, the Minister for Children and Young People, Adam Ingram MSP is quoted as saying that paying for lawyers for vulnerable adults at the Children's Panel is a "moral duty".

In the face of opposition concerns that new regulations would lead to an increasingly legalistic approach at children's hearings, the Minister said, in relation to parents with limited literacy and language skills: "how can we honestly expect them to have their say, to put their perspective across, without help and support?"

Quite so.

I am reminded, in listening to this, in comments made by the same Minister about representation of parents before a different statutory Tribunal - the Additional Support Needs Tribunal which is (I would argue) a more legally complex forum - "I want to make lawyers redundant in the tribunal situation, which we can do through the rules and procedures of the tribunal.".

Posted on Absolvitor: Scots Law Online.

Labels: Children, Education Law, Scottish Government, Scottish Parliament

Back from my holidays and Perth Sheriff Court and just reading this article in The Herald about Consumer Focus Scotland's findings on how user-unfriendly the courts are.

The findings were that the "dearth of information" people received before and during their case "appears to heighten their levels of fear and anxiety". And that therefore, party litigants should be allowed to bring "Mackenzie friends" with them to court.

I find it slightly strange that Parliament (which as the source of legislation must bear some of the responsibility for any complexities which arise in interpreting it, surely?) is being asked to solve the problem of non-lawyers finding court too complex by ... um ... sending more non-lawyers into court! Is it just me, or am I missing something?

If Court is too complex or imposing or whatever for non-lawyers to access effectively, then surely, obviously, the answer is either:

1. reform the system completely, so that it is accessible to everyone (having all cases decided by user-friendly "Justice Tribunals" or somesuch); or
2. make sure that everyone can have access to a lawyer (more Legal Aid, or more Law Centres, perhaps?).

Perhaps I am indeed missing something. Maybe my Mackenzie friend can explain it to me.

Posted on Absolvitor: Scots Law Online.

Labels: Law Centres, News, Scottish Parliament

Brodies LLP reveal on their website the latest in their attempts (on behalf of the insurance industry) to have the Damages (Asbestos-related Conditions) (Scotland) Act 2009 struck down by the courts as outwith the legislative competence of the Scottish Parliament.

As their article correctly points out "An Act of the Scottish Parliament (ASP) is not law to the extent that it is outside that competence. ... If an ASP is claimed to be outside the legislative competence of the Parliament this amounts to a devolution issue."

What the article does not explain is why it should be outwith the powers of the Scottish Parliament to decide that exposing someone to asbestos so that abnormal growths appear on the lining of their lungs should be financially compensated. The industry reply that "pleural plaques are a good thing". Even if that's true, so what? Paying statutory damages where there's no harm or damage is hardly without precedent (I can think of some examples in employment law).

So, pay up and shut up!

Posted on Absolvitor: Scots Law Online.

Labels: News, Scottish Parliament

The Scottish Parliament has been asked to support a campaign to clear the name of Captain Kidd, who was hanged for piracy over three hundred years ago.

But - wouldn't we be sending out a message to the world that Scotland was soft on pirates?

Labels: News, Piracy, Scottish Parliament

Patrick Harvie MSP's Bill was unanimously passed by the Scottish Parliament today. So perfectly drafted was the Offences (Aggravation by Prejudice) (Scotland) Bill that it was not amended at all during its passage through Parliament.

Surely, this type of legislation requires at least one MSP to yell "Thought Crime!" - maybe they did and were outvoted? At any rate, it will be law soon and any offences motivated (in part or in whole) by the victim's sexual orientation or disability will be punished with extra severity. And who could argue with that?

I suppose one of the problems with this kind of provision is that people start to feel left out. There are now aggravations in relation to race, sexual orientation, disability and religion. Now, what about gender? Or age? Or social class? Shouldn't we be stamping out these hate crimes too? And if the list is too long then all offences end up being aggravated and, therefore, none of them are. To quote W.S. Gilbert from The Gondoliers "When everybody's somebody - then no-one's anybody."

Posted on Absolvitor: Scots Law Online.

Labels: criminal law, Discrimination, News, Scottish Parliament

Just a quick note to mark the completion this week of Stage 2 of the Education (Additional Support for Learning) (Scotland) Bill. I will probably be writing a full article for the Journal of the Law Society of Scotland once Stage 3 is done and dusted, so keep your eyes peeled for that.

The Bill has changed so much from its introduction to now, who knows what it will look like once it has completed its passge through Parliament?

Labels: Education Law, News, Scottish Parliament

The Disabled Persons' Parking Places (Scotland) Bill has been passed - meaning anyone using a designated spaces without a blue badge faces a fine of up to £60.

The law is a private member's bill by Dumbarton MSP Jackie Baillie. The move won cross-party support, but some MSPs raised concern about the costs of implementing the legislation.

I have long proposed an alternative solution - simply introduce a new statutory defence to a charge of smashing a car with a baseball bat. This way, no-one would dare to park in a disabled parking bay without the proper authority as a smashed car is much more of a deterrent than a measly £60 fine. Also it provides useful (and lawful) exercise for our young people - while allowing them to contribute to a better society.

A classic win-win. Now, what about those people who park in the parent and child spaces, when their child is obviously at least 14 years old and/or at home watching TV?

Image: Department of Transport, Crown copyright.

Labels: criminal law, News, Scottish Parliament

An article from the Nearly Legal housing law blog alerts draws my attention to the imminent (well, 1st April 2009) coming into force of Section 11 of the Homelessness etc (Scotland) Act 2003.

This long awaited jigsaw piece of the legislation will require landlords to notify the local authority before taking action to recover a rented property. It will allow the authority (with the assistance of other agencies) to take early action to assist the tenant and prevent unnecessary homelessness.

Section 11 will put into statutory force the protocols agreed with many local social landlords in Glasgow as part of Govan Law Centre's prevention of homelessness project (POHP).

Labels: Glasgow, Law Centres, News, Scottish Parliament

Petition by Bill Alexander calling on the Scottish Parliament to urge the Scottish Government to reform the legal system to adopt the Scandinavian system of allowing unrestricted access to legal representation before the court for example by allowing non-lawyers to appear in court on behalf of other parties.

Labels: Scottish Parliament

Nicola Sturgeon MSP, the Health Secretary, has been reported as saying she was "not persuaded" that assisted suicide should be made legal, after independent MSP Margo MacDonald said she hoped to bring legislation on the subject before Holyrood next year.

Ms. Sturgeon (with whom I once worked) said that she was not sure safeguards could be put in place to prevent the system from being abused. However, she is quite comfortable (as I understand it) to see organs harvested from those who haven't got round to "opting out" (i.e. declaring officially that you'd like to hang onto your organs after you're dead).

Labels: Law and Ethics, News, Scottish Government, Scottish Parliament

Campaign groups have expressed concern over the "limitations" of new legislation which aims to strengthen the law on rape.

The groups, including Rape Crisis Scotland, Scottish Women's Aid and Victim Support Scotland, presented their worries about the Sexual Offences (Scotland) Bill to MSPs on the Scottish Parliament's Justice Committee.

The MSPs heard that although the groups generally welcome the new legislation, they had a number of concerns that provisions in the bill could, in certain circumstances, make it more difficult to prove rape.

They also called for action to stop a complainer's personal history being brought up in trials. Sandy Brindlay, national co-ordinator of Rape Crisis Scotland reported that medical records, including mental health problems and use of anti-depressants, are increasingly used in court by the defence counsel.

She said: "We need to be clear about its limitations. It doesn't look at evidence at all. The particular area we are concerned about is sexual history and character evidence."

Although the bill defines "consent" for the first time in law, Brindlay also highlighted concerns over "advance consent". The bill indicates that, even if the complainer is subsequently unable to with withhold consent because they are asleep or under the influence of drink or drugs, there may still be consent if it was agreed at an earlier stage.

Labels: criminal law, News, Scottish Parliament

Scots Law Blogger, Jonathan Mitchell QC brings us an interesting piece on some potentially thorny questions arising from the recently announced Legal Profession (Scotland) Bill.

Covering questions including the "cab-rank rule" and "mixed doubles", his post on The Proposed Legal Profession Bill is well worth a read.

Perhaps the Bill will finally sort out all the mixed metaphors which so bedevil one down at the Faculty.

Labels: Faculty of Advocates, News, Scottish Parliament

With thanks to the "Lawyer TV" channel on YouTube, footage of Dr. Pamela Abernethy of Simpson & Marwick Solicitors giving evidence to the Scottish Parliament's Justice Committee to the effect that Pleural Plaques are "a good thing".

Labels: News, Scottish Parliament

The Scottish Government has announced its legislative programme for the coming year. Here it is in full:

• EDUCATION (ADDITIONAL SUPPORT FOR LEARNING) (AMENDMENT) (SCOTLAND) BILL;
• ARBITRATION (SCOTLAND) BILL;
• BUDGET (SCOTLAND) BILL;
• CHILDREN'S HEARINGS (SCOTLAND) BILL;
• SCOTTISH CLIMATE CHANGE BILL;
• COUNCIL TAX ABOLITION (SCOTLAND) BILL;
• CRIMINAL JUSTICE AND LICENSING (SCOTLAND) BILL;
• FLOOD RISK MANAGEMENT (SCOTLAND) BILL;
• HEALTH (SCOTLAND) BILL;
• LEGISLATIVE REFORM (SCOTLAND) BILL;
• LEGAL PROFESSION (SCOTLAND) BILL;
• PUBLIC SERVICES REFORM (SCOTLAND) BILL;
• SCOTTISH MARINE BILL;
• SAFEGUARDING RURAL SCHOOLS (SCOTLAND) BILL;
• SCOTTISH CLIMATE CHANGE BILL; and
• SCOTTISH PARLIAMENT AND LOCAL GOVERNMENT ELECTIONS BILL.

And the analysis? Well a grand total of 12 "(Scotland)" Bills to only 4 "Scottish" Bills. A clear majority for the brackets. I just hope that in their enthusiasm to abolish Council Tax, the Parliament forgets to enact an alternative!

Labels: News, Scottish Parliament

Some interesting thoughts on a Scottish independence referendum in this post on the Little Man in a Toque blog. Describing Scotland's membership of the United Kingdom as "conditional" rather than "integral and perpetual", the question is posed: how many referendums (referenda?) would be required to effect independence?

Would there be a requirement for one to begin negotiations (a side issue: with whom would Scotland be negotiating, the United Kingdom? England? England, Wales & Northern Ireland?) and another on the concluded terms of those negotiations?

For what it's worth, it seems to me that there would need to be a second plebiscite, otherwise the first would be the constitutional equivalent of signing a blank cheque.

Labels: Scottish Parliament

The World Socialist Web Site (no, really) poses the question, in the light of the Glasgow East bye-election (sic), "just how long it will be before Tommy Sheridan joins the Scottish Nationalist Party?"

Citing recent public comments made by Mr. Sheridan as an attempt to woo the Scottish Nationalist Party, the author of the piece, Steve James, claims "He [Sheridan] clearly has aspirations to revive his parliamentary career. Initially, he is attempting to do that by aligning Solidarity as close as possible with the SNP and, should circumstances allow, by joining it and acting as its left face."

As we know from recent experience, Mr. Sheridan is not afraid to resort to litigation and therefore, I'll be extra careful with what I say. I must confess, my first reaction was that of surprise and disbelief. Then I had a quick peek at the Solidarity website, only to discover that the home page leads with a quote from Mr. Sheridan which begins: "This is a historic victory in Glasgow East for the SNP and I congratulate John Mason. Let us be clear it is a victory for a party to the left of Labour."

Labels: News, Scottish Parliament

For some considerable time (20 years or more), people in Scotland who knew about such things would have told you that the parents of children with special educational needs (or, latterly, additional support needs) have the same rights to make a placing request as other parents. However, they were just plain wrong. We now know - thanks to the judgement of the Lord President, Lord Hardie and Lord Macphail in W.D. v. Glasgow City Council [2007] CSIH 72 - that the right to make a placing request is restricted if you child has additional support needs. Restricted, that is, to the boundaries of the local authority area in which you happen to live.

Three cheers, then to the Scottish Government who are proposing to reverse the Inner House's decision and give the parents of pupils with additional support needs the right to make a placing request to whichever school they damn well please!

However, it appears that this seemingly uncontroversial proposal has caused some concern in certain quarters. Discussion on this point has reached the national media.

Check me out! I am quoted with my Govan Law Centre hat on in these articles:

• Hope for Children who Need Help in Class, The Herald 28 July 2008
• The Hidden Cost of Choice, The Herald 29 July 2008
• Govan Law Centre Welcomes Support for Change in Classroom Choice

Labels: Education Law, Inner House, News, Scottish Parliament

The Scottish Government today published the responses to its consultation on proposed amendments to the Education (Additional Support for Learning) (Scotland) Act 2004. There were well over 100 responses including 27 from individuals and, of course, one from the Education Law Unit at Govan Law Centre, which I wrote.

• Consultation Responses
• Response by Govan Law Centre (PDF)

Labels: Education Law, Law Centres, Scottish Parliament

BBC News is reporting that Stirling Council may stop charging the elderly for food preparation services. Only eight Councils in Scotland currently charge for the service, and some local authorities have begun paying back people charged for the service.

Scottish ministers plan to introduce new laws on food preparation, as previous guidance "lacked clarity". However, until new legislation is in force, local authorities have been left to interpret the existing legislation on their own - leading to discrepancies between different areas.

A Scottish Government spokesperson is quoted as saying: "We will work with Scottish councils to ensure the intention and wording of the revised legislation is clear and the charging issue put beyond any doubt once and for all."

Labels: News, Scottish Parliament

News that in the same month the Public Health etc. (Scotland) Bill was passed, the Creative Scotland Bill bit the dust (although a sequel is promised).

• Public Health etc. (Scotland) Bill (as passed)
• Creative Scotland Bill (as introduced)

Labels: News, Scottish Parliament