Legal Matters Scotland
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9th November 2021

A free early morning round up of news for legal professionals across Scotland.
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THE LAW
Scotland's prostitution laws need to change, argues MSP
In an opinion piece for The National Elena Whitham, MSP for Carrick, Cumnock and Doon Valley, describes Scotland's laws on prostitution as "wholly outdated and fundamentally unjust". She notes that while "online pimping is legal", women exploited through prostitution can face criminal sanctions for soliciting. To make Scotland’s prostitution laws fit for purpose, she continues, "we have to shift the burden of criminality off victims and on to those who perpetrate and profit from this form of violence against women [by] decriminalising victims of sexual exploitation, providing comprehensive support and exiting services, criminalising paying for sex, and outlawing online pimping".
Legal threat to trans-inclusive census
The Scottish government facing threatened with legal action over ‘trans-inclusive’ guidance that would allow people to choose their gender for the national census. Campaign groups argue that sex is defined by law and that census participants should be instructed to declare their sex according to their birth certificate or gender recognition certificate. It follows a successful challenge in the High Court in England against similar guidance produced for the census south of the border. Dr Nicola Williams, director of Fair Play For Women, which won the High Court challenge in March against the Office for National Statistics, said legal action against the Scottish government is under consideration. “This is a very serious matter. What is meant ‘sex’ in the census is a matter of law and not a matter on which ministers can decide. We cannot see any reason why UK census law doesn’t apply in Scotland. We are taking legal advice and considering next steps.”


Technology won’t solve everything
Legal technology expert and Denovo Operations Director, Steven Hill, says; “Technology is only as good as the processes already in place. Now is the time to start rethinking processes. For example, Litigation is a notoriously difficult process with a lot of risk —it’s rigid, time-consuming, introduces friction and delays. To truly solve the problem of litigation we must start thinking about dealing with the matter differently. Because if all we do is apply technology to an already broken process, we’ll just exasperate the problem.”
Read more…

 
INDUSTRY
Court COVID safety measures continued till January
Scottish Courts & Tribunals Service will maintain all existing COVID-19 safety measures in court buildings until the end of January 2022.  The decision follows last week's announcement by Humza Yousaf, the Cabinet Secretary for Health and Social Care, that in spite of COVID-19 case numbers having fallen from the early September peak, they have levelled off at a higher level than before and, entering the winter period, the situation “remains precarious and we need to redouble our efforts to adhere to the protective measures”. The measures include restricting public access to the courts and closing the public counters. A further review will take place in January 2022, taking account of the public health advice at that point. Eric McQueen, chief executive of SCTS commented: “Although case levels have reduced from their peak in early September they remain at a high level. The virus has not gone away and we need to continue to do all we can to keep ourselves, our colleagues and all who use our buildings safe.”
Faculty calls for scaled-back remote hearings rules
Proposals on remote hearings put forward by the Scottish Civil Justice Council (“SCJC”) would have a negative impact on access to justice, the quality of justice and inequality, the Faculty of Advocates has claimed. Under draft rules for the conduct of court hearings after the COVID-19 emergency provisions expire, issued for consultation, remote hearings would become the default position except in most family actions, and ordinary proofs. All procedural hearings, judicial review proceedings and commercial actions would take place remotely, as would legal debates and all appeals unless raising a point of law of general public importance or particular difficulty.  Faculty considers that while it is important to seek to retain, where appropriate, the beneficial elements of the way in which the civil courts have been forced to work during the pandemic, it is equally important to recognise that there are “a number of inefficiencies and inequalities that arise out of the use of virtual hearings”. It would support a proposal to introduce a general default setting of virtual hearings for procedural business, supplemented by the ability of parties to apply for an in-person hearing, to be granted by the court if considered appropriate in the interests of justice.

 
PROPERTY
Plans for 1,400 affordable homes in Perthshire
Plans have been unveiled for 1,400 affordable homes in Perth and Kinross to be built by 2027. An update to the strategic housing investment plan (SHIP) sets out the local authority’s priorities for affordable housing over the next five years. It includes proposals to build 280 new houses a year – above its previous annual target of 150 from recent years. The properties will come through a combination of newbuilds, bringing empty homes back into use and remodelling existing buildings for housing. Councillor Bob Brawn said the plans “will help us achieve the outcomes set out in our local housing strategy and also support the Scottish Government’s Housing to 2040 strategy.”
CASES
Inverness man used stool leg in unprovoked attack
A man who carried out an unprovoked assault with the leg of a broken stool has been jailed for six years. Alexander Stewart, 36, inflicted "gratuitous and extreme violence" on Sean Hendry during the attack, the High Court in Edinburgh heard. The men knew each other but the court heard there was no provocation or justification for the attack on Mr Hendry in his home in Inverness. Stewart, of Inverness, had been facing an attempted murder charge. But the Crown accepted his guilty plea to a lesser charge of assaulting Mr Hendry by repeatedly striking him on the head and body with a stool leg to his severe injury, permanent disfigurement and to the danger of his life.
QE Hospital claim competent despite adjudication clause
A Court of Session action claiming £72.8m damages arising from the construction of the Queen Elizabeth University Hospital in Glasgow has been held competent despite an adjudication provision in the main contract. Lord Tyre held while there was no general rule that some cases were too large and/or complicated to be suitable for adjudication, and the dispute fell within the relevant adjudication clause, the same principles applied as with arbitration clauses and the appropriate course was to sist the action pending the outcome of the adjudication. The claim, for breach of contractual and common law duties, was brought by Greater Glasgow Health Board, shortly before the expiry of the five year prescriptive period, following the discovery of numerous defects at the new hospital, including in the water, heating and ventilation systems, doors, glazing and the atrium roof. The defenders were (first) the main contractor, Multiplex Construction (Europe) Ltd; (second) two corporate guarantors of the first defender; (third) the lead consultant, Currie & Brown (UK) Ltd; and (fourth) the project supervisor, Capita Property & Infrastructure Ltd.
POLICING
Fewer than 50 arrests so far at COP26
Fewer than 50 arrests have been made during the first week of COP26, police have confirmed. Assistant Chief Constable Gary Ritchie said the relationship between protesters and the police has been "largely non-contentious". A series of small protests took place in Glasgow last week before about 100,000 people joined a huge demonstration on Saturday. "This event has already provided us with some unique challenges, but our officers and staff have risen to face them, and the broadly good nature of the members of the public we are interacting with has made this a widely positive experience", said Mr Ritchie. "I very much hope this atmosphere continues into the second week ahead of COP26 coming to its conclusion".


Autumn Budget
Chancellor of the Exchequer, Rishi Sunak, delivered his third Budget and the results of his Spending Review on 27 October, declaring that it begins “the work of preparing for a new economy post-COVID.” The Chancellor struck an upbeat tone during the key fiscal event, as he outlined his vision of “an economy fit for a new age of optimism, where the only limit to our potential is the effort we are prepared to put in and the sacrifices we are prepared to make…
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HOLYROOD
Scottish Government advertise for independent investigators under complaints process
The Government is looking to appoint independent adjudicators, who will be paid £498 a day, as well as independent investigators, to be paid £360 a day. The move comes in the wake of a review into the Scottish Government’s handling of harassment complaints against former first minister Alex Salmond. The review by Laura Dunlop QC into complaints procedures called for allegations to be investigated independently, rather than by the Scottish Government. With the new procedure recommended to be in place by December, the positions are now being advertised on the Government’s public appointments portal. Candidates should “have the ability to make clear, balanced and constructive recommendations on potentially complex issues having analysed and evaluated the facts presented” and states “experience in people-related adjudication in the workplace would be highly desirable”.


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OTHER
Edinburgh school reports parents to police over illegal parking
An Edinburgh school has reported parents to the police over illegal parking when they drop off their children in the morning. The headteacher at Holy Cross Primary wrote to parents saying photographs had been forwarded to the police. "Last week we received a number of concerns regarding illegal and/or inconsiderate parking outside the main entrance to the school", said James McDevitt. "This included parking on the zig zag lines directly outside the main entrance. Two parents were verbally abusive when their illegal parking was questioned". Lesley Macinnes, City of Edinburgh Council's transport and environment convener, said she had requested additional enforcement from parking attendants and the police outside the school on Craighall Terrace. Police Scotland said they would liaise with the council over the matter.
 


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