ANDREW M KERR MBE WS 1940-2024

Everyone at the WS Society is deeply saddened to learn of the death of former Clerk to the Society Andrew Kerr MBE WS on 19 September 2024. Caroline Docherty OBE WS leads a tribute to Andrew on behalf of the Society.

Andrew was, for many years, associated in my mind with the wonderful Scots word “kenspeckle.”  The Concise Scots Dictionary definition is given as “easily recognisable, familiar.”  The Scotsman used the word in an article about Andrew in the late 80s.  It seemed to me so entirely appropriate that it stuck.  He was a kenspeckle figure around the Signet Library, and the Society’s affairs for 58 years, particularly during his 20-year period as Clerk.  But as many have said since we heard the news of his death, and as is highlighted in his obituary published in The Times on 2 October, he was a familiar figure across a huge range of aspects of the civic life of Edinburgh, and Scotland more widely.[1]

We always say that one of the defining features of a WS is an involvement in, and the giving of service to, organisations outside one’s own legal practice, and few can have had as many such involvements as Andrew.  The Edinburgh Festival Fringe Society, the New Town Conservation Committee, Edinburgh World Heritage, Edinburgh Solicitors Property Centre, Edinburgh Festival Council, the Dunedin Consort, the Scottish Arts Council, Old Saint Paul’s Church, and finally the WS Society.

Andrew was a fourth generation WS.  For a time, after his studies at Cambridge, it looked as though he would make his life away from Edinburgh and his family firm Bell & Scott, Bruce & Kerr WS, but he was pulled back from London, and after his apprenticeship at Davidson & Syme he did indeed become a partner in that family firm in 1969.  It was there that I first met him, when I became a newly qualified assistant solicitor with the firm.  Our first encounter was when, in my first week, I had to go and get something signed in a hurry.  But he asked me to sit down, and then asked me “Caroline, what is the purpose of the Search?”  I was only thinking about the need to complete the transaction, but he made sure I was doing things correctly, and then told me that he had never had a conveyancing document “bounced” by the Registers. I understood the message – take time to get things right. A word that Andrew used himself, particularly in relation to the Society, was “surefooted.” The Society should not adopt passing fads, but should always wait, and be surefooted in its actions.

Of all his many interests, I think it fair to say that it was buildings that were his greatest passion, and his association with the Signet Library gave him a particular pleasure.  He genuinely cared about and loved historic buildings and their details – to the extent that he spent 40 years creating the most amazing doll’s house, based on the building at 36 St Andrew Square.  He once broke off a conversation with me in George Street to say, “look at that splendid cornicing.”  And even after a lifetime of knowing and inhabiting the Signet Library, he could stand and genuinely admire details and features, as if for the first time.  He could recite the names of the poets, orators, historians and philosophers that populate the Thomas Stothard cupola painting in the Upper Library without taking a breath.

My predecessor as Deputy Keeper, John Elliot recalls that “Andrew embodied the traditions and spirit of the Society: professional, committed, proud of its traditions but not slave to them. He relished the care of the building and its artefacts, seeing in them the symbols of the Society’s history and its place in Scotland’s society and legal establishment.” 

John’s immediate predecessor, Tom Drysdale remembers Andrew’s key role in the setting up of the Edinburgh Solicitors’ Property Centre in 1971.  This was done on the joint initiative of the WS Society and the SSC Society. Andrew was one of the four directors appointed by the WS Society and in 1976 he became the company’s chairman. During 1981 and 1982 Andrew and Tom worked very closely in leading the planning and launch of the Weekly List.  This was an innovation at the time, providing basic information on all properties for sale by member solicitor firms in Edinburgh and the surrounding area. Tom says “It would be fair to say that the concept of the List was very much developed on Andrew’s initiative. Its beginnings were modest – as far as I remember it started with a weekly print run of about 3000 but in a few years’ time this had increased to about 30,000. It consolidated the profession’s position as the dominant force in the residential property market in Edinburgh and Andrew deserved much of the credit for its success.”

Inevitably, my remarks in articles of this sort are heavy on personal memories, and I hope I will be forgiven for that. On seeing the kenspeckle Andrew at a Society event, I was always thrilled.  He was never without a twinkle.  He told an excellent story, and he always dashed off leaving you wanting more. The exact opposite of a bore. And he understood so well the pressures and difficulties of steering an organisation like the Society and preserving a building like the Signet Library that he was unfailingly generous in his support for the “new guard”. It is fair to say that the depth of my own relationship with the Society, and the great pleasure that has brought me, is entirely down to Andrew.  When I moved from Bell & Scott, into commercial property work, he called me one afternoon and asked me to represent the Society at a St Giles service.  “If you say yes to this, that’s you off the hook, I won’t ask you again.”  But I am glad to say he didn’t keep that promise.  He asked me to join Council, the Library Committee and then to be a member of the committee that selected our then catering partners. I became an office bearer of the Society, and ultimately Deputy Keeper.  I record huge personal thanks to Andrew for that gift, and thanks on behalf of the Society for his care and attention over so many years.

Caroline Docherty OBE WS
Deputy Keeper of the Signet 2008 - 2018

[1] www.thetimes.com/uk/obituaries/article/andrew-kerr-cbxr59ht7

The Post Office Ltd/Horizon IT scandal: implications for in-house practitioners and the impact of the Post Office (Horizon System) Offences (Scotland) Act 2024

By Megan Buggy, Justine Arndt and Tom Edwards

Megan, Justine and Tom were law student scholars, participating in the WS Society Summer Scholarship programme during August 2024. This article summarises their research and presentation.

Introduction

This report aims to provide a succinct review of the Post Office/Fujitsu Horizon IT Scandal, its legal and personal consequences, and its current-and-forthcoming implications for in-house practitioners.

Image source: https://news.sky.com/story/what-is-the-post-office-scandal-why-were-postmasters-prosecuted-and-what-is-horizon-12542573

Contextual Background: 

From 1999 onwards, the UK Post Office began to install Fujitsu’s ‘Horizon’ system on a nationwide basis. The Horizon accounting system sought to standardise transactional record-keeping throughout all subordinate UK Post Offices, operated by individuals known generally as sub-postmasters. Horizon - in an effort to identify dishonesty - would notify the sub-postmaster of any financial discrepancies between the cash present within the till, and the value anticipated. 

Immediately following installation however, the Horizon system regularly identified discrepancies nationwide. Sub-postmasters, confident that they were not missing the anticipated capital, reported the errors to the Post Office; these triggered audits and prohibited sub-postmasters from operating until the discrepancies were resolved. 

Under increasingly accusatory scrutiny, and the Post Office’s repeated affirmation as to the infallibility of the Horizon system, some sub-postmasters resorted to fraudulently amending their Horizon records to satisfy the system, others were falsely advised that their complaints were unique to them; but all were informed that it was their contractual obligation to recoup any identified shortfalls. Many sub-postmasters succumbed to the threat of prosecution and made efforts to personally reimburse the system’s discrepancies. For some, this ‘debt’ was impossibly vast resulting in inter alia, unregulated loans, the commission of theft and reset, and financial destitution. As a result, prosecutions fell ample and nationwide; based upon the fictitious infallibility of the Horizon system and its inability to differentiate an innocent system error from user fraud. 

Today, the Post Office/Horizon system scandal is considered the largest miscarriage of justice in British history. 

“Under increasingly accusatory scrutiny, and the Post Office’s repeated affirmation as to the infallibility of the Horizon system, some sub-postmasters resorted to fraudulently amending their Horizon records to satisfy the system, others were falsely advised that their complaints were unique to them.”

Prosecutions

Within 16 years, upwards of 700 prosecutions were enacted by the Post Office. Within England & Wales, the Post Office - under the Police and Criminal Evidence Act 1984 - was empowered to instigate private prosecutions and hence did so without external review. Conversely, within Scotland, prosecutions are enacted publicly by the Procurator Fiscal upon evidence submitted by Police Scotland. Here however (until revoked by the Lord Advocate in 2024) the Post Office was authorised to act as a specialised reporting agency, and so was able to replace Police Scotland. 

Various sub-postmasters were found to be unfairly prosecuted. One English instance is the Post Office’s manipulation of defendants to plead guilty to false accounting to avoid a custodial sentence of theft or fraud. This occurred in at least 14 of the 20 appellants in Hamilton & Others v Post Office [2021] EWCA Crim 577, and is contrary to the Code for Crown Prosecutors. 

A Scottish example is the case of sisters Jacquie El Kasaby and Rose Stewart, who regardless of their complaints rejection by the Procurator Fiscal, were continually pursued by the Post Office for their £34,000 discrepancy; at one stage being threatened by private debt collectors. The sisters, uninformed as to the reason for their case's dismissal, paid £10,000 to appease the Post Office’s phantom debt. 

At trial, the Post Office markedly failed to submit their auditor's error logs, consequently misleading the fact-finder as to the system's reliability. Within the now eminent English case of Bates v Post Office Limited [2019] EWHC 3408, Justice Fraser highlighted that in-house lawyers' strategic concealment of the Horizon audit logs was not ‘procedurally acceptable or fair’, and that the Post Office had concealed the extent of Horizon’s fallibility from prosecuting counsel - leading them to ‘entirely unwittingly, and on instruction, [provide] misleading information to the [factfinder]’. 

Government Response

In response to the burgeoning scandal, in 2021 a public inquiry was launched to investigate and publish the failings of the Post Office, and the testimony of its victims. 

The inquiry disclosed that numerous senior Post Office staff were aware of the fallibility of Horizon, all whilst prosecutions continued. Fujitsu engineer Gareth Jenkins was found to have concealed Horizon’s defects, acting as an expert witness in various prosecutions regardless; an example being Seema Misra, who was ultimately incarcerated whilst pregnant. Mr Jenkins remains under investigation for perjury.  Not least Mr Jenkins, but Post Office CEO Paula Vennells remains accused of knowledge of the system error(s) before prosecutions concluded.

“Following the inquiry, in 2024 Holyrood proposed and passed the Post Office (Horizon System) Offences (Scotland) Act 2024 to ensure legislative redress for Scottish victims and harmonise with its English equivalent.”

The Act, via s1(1) seeks to quash (defined in s7(1)) sub-postmasters' wrongful convictions where its legal tests are met (for deceased accused/defendants, see (s4(3)(a)-(ii)). The Act is a retrospective and scandal-specific means of legislative redress. 

In determining a relevant offence (s1(2)(a)), conditions A-E must be met (s2(2)(a)-(6)(a)/(b)). First (s2(2)(a)-(b)), the offence(s) must have been committed between the dates of 23 September 1996, and the 31st December 2018; this is to capture the period where chiefly the Horizon system was in use. Condition B (s2(3)(a)-(d)) provides the grounds on which the offence must be based upon. These are all crimes of dishonesty; s2(3)(e) however expands these grounds to ancillary offences, which are defined in s2(7)(c) as assisting a primary offender in the relevant offence. Condition C & D (s2(4) & s2(5)) establish that at the time of such an offence, the accused was carrying out business in connection with their sub-postmaster duties. Finally, Condition D (s2(6)(a)-(b)) stipulates that at the time of the offence, the Horizon system must have been in use to some capacity. 

Implications for In-House Practitioners:  

The Post Office/Horizon scandal demonstrates marked failures of numerous in-house lawyers' duties as defined by the SRA and LSS. An example is Jarnail Singh, who regardless of provably possessing information pertaining to Horizon’s fallibility, denies any cover-up involvement. It is submitted that an in-house lawyer's duty to the general public ought to be emphasised alongside their commitment to their company, this may be achieved both via internal and external oversight. 

Ethical Auditing: 

This report proposes a novel ethics audit for in-house solicitors, applied on a risk-posed basis. The composition and functionality of this body remains to be determined and would require extensive think-tanking and funding. This body would allow for both increased whistleblower access, and a point of reference for dubious practice.   

Ethical Certification: 

A cost-effective whilst less universal alternative to ethical auditing is a voluntary ethical certification. This could be carried out by a third-party body similar to ICAS and could serve a similar purpose to clients as Athena Swan Charters but as a certification of ethical culture and practice. 

Digital Evidence, and the Revival of Section 69 PACE 1984: 

Aside from this implication, there is also the additional issue of how digital evidence is treated at trial. The status quo deems digital evidence unanimously trusted unless proven otherwise; however, prior to 2000, s69 operated within the Police and Criminal Evidence Act 1984 (PACE 1984), which established that all digital evidence ought to be proven accurate to be admissible as evidence, as opposed to a generic presumption of its accuracy. This operated as a presumption of guilt upon software. However, in 1995 the Law Commission advised repealing the section. James Christie argues that the revoking of s69 was pursued under an erring as to the difference between generally infallible computer hardware (the provided analogy being a wristwatch), and more complex fragile software. It is submitted that if s69 had remained during the Horizon Prosecutions, it may have allowed for more trustworthy digital evidence accuracy. It is hence submitted that the revival of an s69 equivalent would safely accommodate for increasing digital evidence reliance.   

The Importance of Contingency Plans and Training:

The Post Office/Horizon scandal highlights the consequences of a lack of internal codified contingency plans and solutions. In Bates, Lord Justice Fraser expresses the expectation that the system should "prevent, detect, identify, report or reduce the risk" of system errors. Bates also highlighted the lack of sub-postmaster training regarding the Horizon system. It is submitted, that where an organisation vests financial reliance in a computer system, proportionate training ought to be delivered to its operators; the potential that an IT system may be at fault must likewise be championed.  

Contractual Clarity: 

Obligations, responsibilities, warranties, and liabilities must consistently be contractually clear between IT system manufacturers and users to avoid wrongful prosecutions. If the Post Office and Fujitsu had stipulated where liability rests in the event of the short-falling error - it may have prevented liability falling on sub-postmasters. 

Corporate Culture: 

The Post Office incentivised prosecutions for both financial and professional gain. Once a cultural practice takes root, other than resignation, it is nearly impossible for in-house lawyers to subvert it as their duty lies in the company's success and longevity, reliant on senior management's direction. Business leaders must closely monitor their company's culture, particularly in its formative stages, to ensure sustained ethical practice during its growth. 

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 and The Children (Care and Justice) (Scotland) Act 2024

By Laura Ifold, Fiona Meighan and Jamie Probert

Laura, Fiona and Jamie were law student scholars, participating in the WS Society Summer Scholarship programme during July 2024. This article summarises their research and presentation.

Introduction

This report reviews the UN Convention on the rights of the Child (UNCRC), Incorporation (Scotland) Act 2024 and discusses its implications for the Scottish legal framework, especially regarding age limits and the criminal justice system.

The UNCRC provides a holistic framework, guiding the development of strategies and programmes to uphold the rights of the child. Moreover, the Act ensures that children have access to legal recourse where their rights are overlooked; and establishes a method of accountability. While technically legally binding, due to the UK’s ‘dualist state’ persona, there has been failure to implement the treaty into domestic law. This has hindered its practical effectiveness and stunted the UNCRC in making any significant change thus far.

It is clear that decisions of government impact children more than any other group in society. The UNCRC grants all people under the age of 18 a comprehensive set of rights, ranging from health and education, to family life and play. The enforcement of the Act into domestic law requires that all public authorities will seek to uphold the rights of the child and take them into consideration when developing new policy or law. Furthermore, it will also be unlawful for public authorities to contravene UNCRC requirements.

Children’s rights will be inherently entitled to protection rather than merely being subject to the judgement of others.

“The child’s best interests should be at the forefront of a judge’s decision making.”

In the case of Ruiz Zambrano, the EU Court of Justice ruled that to deny the residence and work permits of non-EU parents, of whom EU citizen children were dependent upon, would deprive the children of their EU rights under the UNCRC. This demonstrates that where children are involved, their rights should be given utmost consideration, even in precarious situations such as immigration status.

Scottish efforts predate that of the UNCRC, however difficulty has arisen in implementing the convention on a national scale. Initial efforts were made in 2021 when the Act was passed unanimously in the Scottish Parliament. However, the UK Supreme Court found that some provisions of the Act were outwith the legislative competence of the Scottish Parliament, nullifying previous efforts to implement it. Areas of concern primarily revolved around the fact that they would allow Scottish courts the power to interpret UK laws in ways that weren’t intended. They were then amended to coincide with Scottish devolved powers, meaning the Act applies exclusively to legislation enacted by the Scottish Parliament. Arguments have advanced that these amendments greatly reduce the powers of the Act - described by critics as a ‘shadow’ of what it could’ve been.

Furthermore, there hasn’t been any discussion to include the ‘third optional protocol’ to the UNCRC. This allows for complaints to be made to the UN Committee on the Rights of the Child (the Committee) and omitting this could significantly impact the ability to effectively hold public authorities to account. The Danish case, IAM v Denmark, demonstrated that where children are able to access legal recourse through this optional protocol, they’re more able to effectively enforce their rights and use the Committee as a tool for holding public authorities to account.

Article 1 of the UNCRC defines children as “anyone below the age of eighteen”. In Scots law the age of majority is eighteen, but full legal capacity is attained at sixteen as stated in the Children (Scotland) Act 1995.

There was concern by several organisations that the age of capacity would need to be increased to align with the UNCRC. The Convention does however include the concept of evolving capacities (Article 5), which was defined by the Committee as “an enabling principle that addresses the process of maturation”. This idea supports the current framework in Scots Law by acknowledging the need for protecting children, while also allowing them to grow and have increased autonomy.

There are many in Scotland that advocate for the minimum age of marriage to be increased to 18. The policy is embedded in UNCRC principles and could tackle forced marriages involving children. Despite arguments that Scotland has robust legislation protecting against forced marriage, there are those that argue that this does not go far enough to protect children’s rights. The Scottish Government has committed to a review of this issue and their publication is imminent. This debate raises questions as to whether this best serves the interests of young people or whether it acts as a challenge to their autonomy by removing previously held rights.

Age limits, while providing clarity for a judicial system, are, by their nature, arbitrary. They don’t allow for individualised assessments to consider whether those of a certain age have enough maturity to acquire a right. Scotland has introduced more flexibility in some areas. The Age of Legal Capacity (Scotland) Act 1991 states that in the medical environment, children of any age can consent to any procedure if the professional performing it decides that the child has sufficient understanding. This illustrates that this flexible approach can be successful, while still following the requirements set out in the UNCRC. UNICEF and Save the Children recommended in their report “…varying degrees of protection, participation and opportunity for autonomous decision making”. Article 41 of the UNCRC also invites State parties to legislate beyond the Convention. This shows that it’s this balance, between protection and autonomy, which will allow Scotland to ensure children’s rights into the future.

As part of the task of embedding the UNCRC into domestic law and adhering to the Promise, the Children (Care and Justice) (Scotland) Act 2024 was passed and changes how children will experience the care and justice systems. The Act defines a child as a person under the age of 18, which aligns with the UNCRC, so all children will now have access to the Children’s Hearings System (CHS) and ministers have pledged that under 18s will no longer be placed in Young Offenders’ Institutions (YOIs). Whilst these measures are widely supported, practical factors need  addressing to ensure that this works for vulnerable young people.

Article 40 of the UNCRC states clear terms that a child can expect from the justice system of their state. Arguably Scotland already complies to this, and this is largely due to the CHS which has much of article 40 at its core. There are however concerns that the system has flaws and it follows that to include more children in this system, these concerns do need to be resolved to ensure that all children have comprehensive access to their rights. Criticisms facing the CHS include children feeling that they’re not treated with respect by panel members, finding the experience traumatic and there are ongoing issues with lack of diversity of the panel members in comparison with the children that they face. Reports indicate that some children would prefer to experience the courts system, which is concerning, considering what the system aims to achieve. This does however highlight that this age group is diverse, and the CHS is going to need to adapt to that to be compliant with the UNCRC. What is essential is that all children have access to the advice and advocacy that they are entitled to, and this advice is age and capacity appropriate.

The Children’s panel is the main point of contact in juvenile justice and all the above could lead to accusations that children are not being provided with a fair hearing, which is their legal right. Article 40 states that children have the right to have the matter determined without delay by a competent, independent authority or judicial body in a fair hearing according to law. Legal actions could therefore be brought under article 40 breaches.

The Hearing System Working Group was established to explore a redesign of the CHS. One area of focus was the use of volunteers. They recommend introducing a paid panel for all hearings. The Government didn’t accept this proposal, however they are considering this as an option for certain hearings. They’ve stated that whilst the use of volunteers isn’t specified in legislation, accompanying policy documents for the Children’s Hearings (Scotland) Act 2011 stress that the panels should be comprised of volunteers.

Whilst the use of lay volunteers is at the heart of the CHS, it’s questionable as to whether this is appropriate in cases of juvenile justice. At the very least, specialised training may need developing, in terms of rights protection, trauma awareness and how to interact with neurodivergent children.

“Volunteer Scotland have highlighted that recruitment of volunteers has been massively hit by the Cost of Living crisis which could exacerbate issues facing the CHS at a time where it will be expected to do more. ”

The Government does accept that panel members could be entitled to remuneration and that there could be more specialised panel members for certain hearings, however whether these options are pursued and what form this would take remains to be seen. Recommendations for the redesign are in-depth, and at present what a new System will look like is unclear.

The Scottish Government is embarking on a preventative rights-based model for youth justice which promises to include all young people in their community and have access to what they need to grow up in adherence with the Promise. This requires extensive investment  in times of stretched budgets but these are legal rights. In the context of homelessness, there has been recent judicial comments made that whilst Local Authorities cannot be expected to do the impossible, simply citing budget constraints is not adequate when they have failed to meet their legal obligations. The task for the law is the response to when these rights are violated. An additional challenge is ensuring that children have access to this legal protection.

The Care and Justice Act  can be viewed as a positive starting point in its potential to protect some of the rights of many, if not all, children entering the justice system. There are other measures in the Act and this exists as part of a much wider strategy, however Scots law has some way to go to be fully protecting the rights of children in terms of criminal justice. The Act focuses attention  on those that have already entered the system. Even if processed through the CHS and children aren’t in YOIs, stigma attaches to their experiences and this has life-long consequences.

“If Scotland is going to fully embrace the UNCRC in terms of juvenile justice, a holistic preventative approach needs to be pursued timeously.”

The UNCRC Act presents an opportunity to refrain juvenile justice to focus on the needs and rights of most vulnerable children who are at risk of offending, and this needs to be fully embedded in upcoming legislative reform so that these children are not missed. Scotland has positive measures already in place, however much remains to be seen on how the Scottish Government are going to achieve their ambitious targets.

Lessons can be learned from countries that have incorporated the UNCRC. In a UNICEF study on implementation  of the UNCRC, it was found that the most vulnerable groups of children experienced less rights protection than their peers. How these children are reached is of paramount concern. The online environment provides opportunities for expanding engagement. This comes with its own problems, as the most vulnerable in society may not have the ability to access the internet.

Children don’t necessarily know or understand their rights, and there needs to be widespread educational reforms. Lessons can be learned from Wales as they’ve implemented several programmes in this area that allow children to learn about their rights under the UNCRC through interactive lessons.

However, this again leads to another problem – even if children have knowledge of their rights, can they advocate for, and access, them? Children need access to an already underfunded legal aid system or overstretched law centres. This would necessitate a complete funding overhaul of these services because children should be able to access free legal services to uphold their rights.

Despite all the above concerns, what the Act achieves is a clear message from Scotland that children’s rights should be taken seriously, and if properly implemented, it has the potential to pave the way for further human rights instruments to be incorporated into domestic law in the future.

The Eu "Ecocide" Law: An Analysis of the 2024 Environmental Crime Directive

By Shahida Mukit, Uzair Afzal and Jasmine Kettles

Shaida, Uzair and Jasmine were law student scholars, participating in the WS Society Summer Scholarship programme during July 2024. This article summarises their research and presentation.

Introduction and Background

“If genocide could be perpetuated against humankind... then an attempt to destroy a natural environment should be qualified as equally disturbing. Such an atrocity required a similar concept – ecocide or an attempt to wipe out a specific environment.”

— Arthur W. Galston, Conference on War and National Responsibility (1970)

The concept of "ecocide" originates from the 1970s, when professor Galston advocated against harmful herbicides during his environmental campaign. In today’s climate, ecocide has been regarded as “long-term and severe damage to the natural environment” recognised as a war crime under Article 8(2)(b)(iv) of the Rome Statute.

Ecocide is defined as:

“Unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

”

— The Independent Expert Panel (2021)

This report aims to provide a comprehensive review of the EU's 'Ecocide' Law as embodied in Directive 2024/1203 (“the 2024 Directive”). It will compare the new directive with its predecessor, Directive 2008/99/EC (“the 2008 Directive”). It will also examine the penalties and legal liability thresholds, the enforcement mechanisms, the scope of the new directive, and implications for small-medium enterprises (SMEs) and big corporations. Furthermore, the report will provide a global insight on Ecocide, with a particular focus on the Scottish and UK frameworks.

Comparison of the 2008 and 2024 Directives Including Offences

“The Directive now outlines 20 environmental offences, which significantly widens the scope of prosecution. Also, the introduction of a ‘qualified offence’ under Article 3(3) widens the scope even more, and doesn’t limit environmental offences to 20 separate acts.”

— Summer Scholars

The 2024 Directive is a substantial improvement over the 2008 Directive, increasing the number of criminal offences from 9 to 20. New offences such as the placing of harmful products on the market and executing projects without consent have been introduced. It categorises offences based on intent or serious negligence, providing clearer definitions and penalties for unlawful conduct. It introduces new offences relating to hazardous substances, waste management, ship recycling, ship-source pollution, offshore installations, and more. Additionally, ‘qualified offences’ comparable to ecocide are introduced, mandating severe penalties for catastrophic environmental damage.

Unfortunately, the Directive is incomplete, and there are some acts which are not yet criminalised. This includes unregulated and illegal fishing, which was a concern for the European Parliament. Although the European Commission is tasked with updating the list of offences, it is unclear how often this exercise will be carried out.

While  there are gaps and some criminal acts are not yet formal offences, the 2024 Directive still covers a lot of the key environmental offences which cause harm. Also, theoretically the Directive still has the opportunity to be updated to reflect the changes in environmental criminal law, which is left to the Commission to do so.

Scope

The scope of the 2024 Directive is extensive and wide-ranging. Member States have jurisdiction over offences that have been committed within their territory. This also extends beyond the territory of the State, including (a) on board on ships or aircraft registered to the Member State, (b) when the offender is a national or habitual resident of the State, (c) when the offence benefits an organisation established in their territory, or (d) if the offence poses as an extreme environmental risk to their territory.

Pollution on the Rhine River, located in Switzerland, Liechtenstein, Austria, Germany, France and The Netherlands.

The scope of this Directive is undoubtedly wide, as Member States can still prosecute for crimes which still concerns them, even if it wasn’t committed on their land. The increased scope of the Directive will make it a lot easier to actually prosecute these crimes on an EU level. Thus, it becomes a stronger deterrent as organisations who commit offences can open themselves to increased prosecution.

For example, in a scenario where a river, such as the Rhine, is polluted, Member States where the Rhine cuts through can prosecute if they are impacted by environmental offences caused within the Rhine in another Member State.

Penalties and Sanctions

In the 2024 Directive, penalties can be imposed on natural and legal persons for any of the offences carried out. These penalties should be effective, proportionate and dissuasive criminal penalties.

For natural persons, the maximum sentence that can be imposed for the most serious offences causing death should be 10+ years. For qualified offences, the maximum sentence should be 8+ years, and for other offences, at least 3-5 years depending on the specific offence. For legal persons, they could be fined either up to 5% of their total worldwide turnover, or €40,000,000 for the most serious offences. For other offences, they could be fined either up to 3%, or €24,000,000.

Other penalties can also be imposed, such as the requirement to restore or compensate for damage to the environment, be excluded from public funding, or have permits withdrawn. These penalties can vary depending on the circumstances of the case, known as ‘mitigating’ and ‘aggravating’ circumstances which can either reduce or increase the penalty.

The severity of the penalties reflects the severity of the offences, and acts as a sufficient deterrent for perpetrators. According to Europol, environmental crime is a global industry with an annual worth of $70bn - $213bn. The increase in fines, and the introduction of prison sentences creates a stronger deterrent, stopping companies from incorporating these fines into the budget. Simply, there is more on the line.

Legal Liability Threshold for Legal Persons

To justifiably impose penalties onto a legal person, they must be held liable for the offence committed. Article 6 of the 2024 Directive states that a legal person will be liable when an individual within the legal person commits the offence for the benefit of the legal person. This individual must also have (a) the power to represent the legal person, (b) the authority to make decisions on their behalf, or (c) the authority to exercise control within the legal person. A legal person may also be liable when an individual commits an offence due to exercising a lack of supervision or control over them.

This threshold can be compared to the Manchester Ship Canal Case (discussed further below). Also, it can be compared to vicarious liability as both stipulate a responsibility for companies over their employees.

Although it is clear what is required to hold a legal person liable, this threshold is too high, as there needs to be definitive proof of a benefit to the company, as well as the individual holding a position of authority. Legal persons can easily avoid liability by distancing themselves with said individual.

Enforcement Mechanisms

“The Directive is enforced through cooperation between Member States, and with EU bodies. However, the European Public Prosecutor’s Office (EPPO) has no power to prosecute environmental offences.”

— Summer Scholars

Articles 19-20 ensure that the Directive is enforced through Member States cooperating with each other, and with EU bodies, through establishing specialised coordination bodies. This essentially makes it easier to prosecute environmental crime and makes assistance more readily available.

Enforcing the Directive, and prosecuting offences will be a lot easier, as Article 13 requires Member States to have sufficient staff, funds and resources to properly investigate and prosecute offences. However, EPPO cannot prosecute themselves, and only assists with cooperation. This is a missed opportunity to make prosecuting offences even easier at EU level.

Implications on SMEs and Big Corporations

Application of the 2024 Directive varies depending on the organisation’s size. Article 7(3) states that the penalties imposed must be proportionate “to the individual, financial and other circumstances of the legal person concerned.” Although the size of the organisation will be considered when issuing penalties, larger corporations will less likely be affected by financial sanctions than smaller entities. This is because for smaller entities, a larger proportion of funds will be required to pay the fines.

Comparisons with Similar Legislative Pieces

Scotland:

According to a Scottish Sentencing Council Report, there has been long-standing criticism of the viewpoint that Scotland’s environmental offences are excessively light, and do not serve as enough of a deterrent. Scotland has proposed ecocide legislation in November 2023, which aligns closely with the 2024 Directive, albeit imposing stricter penalties of a minimum of 10-20 years. Additionally, the proposed Bill seeks to impose a sanction on legal persons of up to 10% of worldwide turnover, compared to the EU’s 3-5%.

The new Bill would act as an overarching piece of legislation seeking to fill in the gaps in the current legislation. It has been drafted to complement existing environmental bodies like the Scottish Environmental Protection Agency (SEPA), who will act as the enforcing body, as currently the Environmental Rights Centre for Scotland (ERCS) found that enforcement efforts are not enough. For example, recent data confirms that prosecutions, statutory notices and other penalties for pollution breaches have decreased by over 100 since 2017.

The UK:

The UK’s approach to environmental law has traditionally involved criminal penalties for regulatory breaches. While there is no specific crime of ‘ecocide’, existing legislation covers a range of environmental offences. The UK's piecemeal approach contrasts with the comprehensive nature of the 2024 Directive, highlighting the need for more unified and stringent environmental laws.

While the UK has no obligation to implement the 2024 Directive, Baroness Boycott proposed an Ecocide Bill at the end of 2023, but the Private Member’s Bill did not receive government support. Although the Bill was unsuccessful, it highlights issues of public importance, potentially influencing future legislation. The biggest setback for the UK is not a lack of environmental laws, but a lack of investment and inadequate enforcement and sanctions. However, new sentencing guidelines are gradually leaning towards imposing higher penalties, and the new Office for Environmental Protection already has a useful oversight on regulatory action.

Manchester Ship Canal Company v United Utilities Water (No 2) [2024] UKSC 22 discussed whether a civil law claim in nuisance or trespassing could be raised against the utilities company. This was in relation to unauthorised discharges of untreated foul water. It was held that the canal company could bring a claim in nuisance or trespassing, regardless of there being no negligence or deliberate misconduct. The actions by the utilities company would likely be considered under the 2024 Directive as unlawful waste management constituting a criminal offence, where such conduct concerns hazardous waste. If the UK was to adopt the Directive, this case may have gone through criminal proceedings as opposed to the civil route.

The EU:

In the Czech Republic, the 2008 Directive was implemented and environmental regulation is governed by the Czech Criminal Code (CCC). Although it does not fully recognise the term ‘ecocide’, it is still reflected in the CCC. To comply with the 2024 Directive, new offences will need to be introduced into the CCC, as well as increasing the penalties.

Belgium has been in support of the new Directive even before its publication in the EU Journal. It included the crime of ecocide into a new criminal code which is to be adopted in 2026. They define it as “deliberately committing an unlawful act causing serious, widespread and long-term damage to the environment knowing that such acts cause such damage.”

Conclusion

“In order for the Directive to actually work, Member States need to take steps to ensure that it is properly implemented. They also need to continuously enforce the Directive, otherwise, it merely becomes a list of provisions.”

— Summer Scholars

In conclusion, the 2024 Directive represents a significant advancement in the EU's efforts to combat ecocide, despite it not being specifically mentioned. However, it is crucial that Member States abide by the Directive, by implementing specialised bodies, as well as cooperate with one another, for it to actually work. Additionally, the countries seeking to prevent ecocide-type crimes should remain conscious of adequate enforcement. If Member States fail to do so, the Directive will be ineffective in combating ecocide, and will merely become another list of provisions.

The Legal Approach to National Heritage: Restitution and Repatriation of Cultural Property

By Jordan Smith, Noah Norbash and Sinéad Pow

Jordan, Noah and Sinéad were law student scholars, participating in the WS Society Summer Scholarship programme during August 2023. This article summarises their research and presentation.

Introduction

This report seeks to examine how the law and institutional policies interact to impede or facilitate the return of cultural property to its original owners. This will be achieved by first defining cultural property, mentioning its legal importance contemporaneously, and looking at ownership issues. It will then touch on barriers to conveyance and possibilities for compelling conveyance of cultural property. Finally, it will discuss alternative dispute resolution and internal policies created by relevant institutions.

This report’s title refers to pieces of tangible cultural patrimony removed from the place where they originated -- not heritable or immoveable property. The Draft Common Frame of Reference defines cultural property as:

“National treasures possessing artistic, historic or archaeological value”

— Draft Common Frame of Reference

Ethical matters relating to cultural property have come to the fore of public discussion in past years, scrutinising the racial and socioeconomic context of historic collections: it is asked whether it is right to be maintaining a colonial legacy in a modern world. On the other hand, some oppose repatriation efforts based on nationalism or reluctance to apply morals retroactively. Spoils of war are a complicating factor, and were only formally prohibited after the Hague Convention of 1899.

Ownership and Existing Legal Rights in Cultural Property

Scots International Private Law rules indicate that the lex situs applies. This means that Scots law will govern the circumstances in which the object was acquired in its home country and whether these were legitimate or not.

If there was a valid sale or gift, this will mean that a good title was conveyed and the Scottish collection has clear ownership over the object. This is the best-case scenario.

In instances of forced sale or duress, the title to the object would have been void, and the original owner still would have had ownership of the object after the conveyance. Section 8 of the Prescription and Limitation (Scotland) Act 1973 states that if a right “has subsisted for a continuous period of twenty years unexercised or unenforced, and without any relevant claim in relation to it having been made, then as from the expiration of that period the right shall be extinguished.” This would indicate that ownership would negatively prescribe and that ownership of corporeal moveable property would therefore go to the Crown per common law.

In the situations where the property was stolen from its original owners, Schedule 3(g) of the Prescription and Limitation (Scotland) Act 1973 includes as imprescriptible “any right to recover stolen property from the person by whom it was stolen or from any person privy to the stealing thereof”. This may counteract negative prescription of ownership in corporeal moveables. A possible interpretation is that regardless of subsequent good will or value given, an original owner can indefinitely seek recovery of stolen goods.

In contrast to other moveable objects, in Scotland there is no right of ownership over human remains, only right of possession (Robson v Robson 1897 SLT 5 351). Thus in Scotland, human remains exist in the category of res extra commercium, or things which are not exchanged in the course of normal commerce. The list in Schedule 3 of the Prescription and Limitation Act also includes the right to recover property extra commercium as imprescriptible.

“With improvements in DNA technology, this report predicts that individuals will increasingly be linked biologically to human tissue in existing collections and could seek recovery of ancestral remains.”

— Summer Scholars

Barriers to Repatriation Decisions

Having established who has legal rights in cultural heritage, what action can be taken by the owner or possessor?

Individuals owning artefacts can of course do whatever they wish. However, other bodies are regulated by schemes with different restrictions on gifting property.

A Māori skull which has been held as part of a museum collection in Moray for more than 130 years is to be repatriated to New Zealand.

National public museums and galleries are governed by detailed primary legislation. In Scotland, there is one scheme for museums and another for galleries. Both only allow the Boards of Trustees to gift objects in the collection in five situations: firstly, where they hold a duplicate; secondly, where it would be unsuitable to retain and would not impact the public or education; thirdly, a gift to another specified national museum or gallery; fourthly, where the Secretary of State consents to gifting to another organisation; or fifthly, due to damage or destruction.

In England, the rules are very similar under the British Museum Act 1963, the National Heritage Act 1983 and the Museums and Galleries Act 1992. Notably, the British Museum cannot gift to organisations abroad; a substantial impediment to repatriation efforts. In the Attorney General v Trustees of the British Museum, the High Court decided that these restrictions prevented the return of artwork stolen by the Gestapo during the Second World War. This was rectified in the Holocaust (Return of Cultural Objects) Act 2009. It authorises national museums and galleries to return objects looted between 1933 and 1945 if recommended by a Panel and the Government consents.

Human remains may be outwith these restrictions since they cannot be owned: can they be “vested” in a museum’s collection? It is possible that the right of possession can be interpreted to argue that they are, but this is ambiguous. Nevertheless, legislation authorises specified museums to de-accession remains from less than a thousand years ago for any reason, thus having potentially wide-ranging applications for those institutions. 

The general powers of local authorities and their museums are uncurtailed in Scotland or in England and Wales; decisions will be left to the council or a delegated committee.

Private organisations may be restricted by the rules in their Partnership Agreement or Articles of Association. For example, companies may require different quorums of directors in agreement or may be vetoed by shareholders.

Trustees in Scotland must be specifically granted the power to gift trust property compatibly with trust purposes since the Trusts (Scotland) Acts 1921 and 1961 are silent. Though an upcoming revision of the law may change that. Scottish charities must abide by charity purposes and always prefer the charity’s interests.

England gives a sharp contrast: trustees can request authorisation for a gift for “an exceptional moral reason” (Re Snowden [1970] Ch. 700). Currently unimplemented legislation would allow charities to make low-value gifts without authorisation but this has been delayed by the government.

As we see, there are differing barriers for those who seek to repatriate cultural property. However, it will be up to those making the decision as to whether they actually wish to return an artefact.

Compelling Repatriation

We can now question what action could be taken to require repatriation, both domestically and internationally.

For objects in Scotland, the first option would be to go to court to assert their ownership and seek return to the owner. In many cases, alas, the party seeking repatriation may not own it or proof may be impossible. 

Alternatively, a decision to refuse repatriation could be judicially reviewable, including over non-public bodies in Scotland. The applicable grounds would vary case-by-case but may include irrationality or breach of Convention rights. 

Recent cases from the Supreme Court and the European Court of Human Rights have limited potential for that development. In Syllogos v. the United Kingdom, the European Court considered whether the  “Athenians Association” suffered an infringement of its human rights due to the refusal to return the Elgin Marbles and withdrawal from the UNESCO mediation procedure. The applicant argued that retaining the Marbles was a deprivation of access to cultural identity and national historical information.

The application was held inadmissible and the Court dated the claim to the acquisition of the Marbles in the early 1800s, rather than the refusal to return them. This approach to dating could be a significant barrier for other claims. There is a body of precedent recognising that human rights can be engaged when a State expropriates cultural property from individuals to protect it but this is limited to being a justification and legitimate aim of State action. Syllogos highlights that Convention rights have not, yet, been successfully translated to where an individual seeks to positively assert a Convention right over cultural property.

Importantly, developments at Strasbourg can only benefit the signatory States, excluding African, Asian, American and Oceanic countries. The same can also be said for the EU scheme, though the UK left this mechanism in 2020.

Following recent thefts from the British Museum, Greece has expressed concern over the safety of the Marbles. Such persistent irresolution betrays the ineffectiveness of formal procedures, reinforcing the need for processes, outwith courts, better suited to deal with complex social, historical and ethical issues.

ADR and Internal Policy

Due to the lack of legal clarity, generally these issues are resolved through methods of alternative dispute resolution. This allows the parties in question to put aside the arguably harsh legal stances to also focus on their cultural connections and reach an, often ethically-led, solution.

UNESCO has an international mediation strategy for intergovernmental communication regarding cultural heritage established in 2005. This is not a perfect solution as these procedures have not yet been used by Member States, and the aforementioned Syllogos case shows that if a Member State does not want to engage with proceedings, UNESCO has no power to compel them. This framework is a positive step towards a clear path to restitution, however generally, methods of ADR tend to be used in an internal setting between institutions and cultural leaders directly.

Another area where ADR has been particularly advantageous is reaching resolution, as through negotiations, there is room for compromise and case-by-case specificities. There can of course be simple restitution or a refusal of restitution, however many case outcomes land somewhere in the middle. These outcomes show us the importance of ADR in this sector, and many domestic institutions have adopted policies and procedures to provide clarity and streamline this process in the best interests of claimants and possessors, which we argue the law can draw from for future reform.

Repatriation of Indian artefacts from Kelvingrove Museum, Glasgow, 2022

As for informal ADR, Scottish institutions such as local authorities, museums, and universities have developed their own internal procedure to deal with repatriation requests.

National Museums Scotland is a non-departmental government body which presides over the National Museums of Scotland. The organisation has set out clear criteria for when trustees will consider a claim, what should be included in the initial request, types of admissible evidence, and a non-exhaustive list of criteria they will use to evaluate a claim. As discussed, the trustees will recommend a position on a claim but it ultimately is in the hands of the Secretary of State.

Many local authorities have taken a similar approach in their internal process, for example, a working group for Glasgow City Council established their policy after numerous repatriation requests in the 1990s.  This includes a relatively limited list with less emphasis on the detriment of Scottish museums, and more on the continuity between the original owners and the claimant, the cultural importance and the fate of the object once returned.

Universities are perhaps a surprising inclusion, but accounted for 9 out of 32 repatriation requests in Scotland from 1990-2022. These policies are very similar to those discussed, with the University of Aberdeen prioritising close to the same criteria as Glasgow City Council. The University of Edinburgh falls into the slightly more conservative bracket with NMS, however all of these internal procedures place significant emphasis on the ethical issues at the heart of these requests, which the legal regulations neglect.

It is through these internal procedures that all successful repatriation requests in Scotland have been achieved. Our research suggests that

“Internal policy and procedure is not just filling gaps in the law, but acting as the primary agent in repatriation regulation ”

— Summer Scholars

Hence why this reform is imperative to guarantee a standardised equitable procedure. These policies provide clear and extensive criteria that we believe could be examined, for example by the Scottish Law Commission, and act as inspiration for reform.

Conclusion

This report has covered a wide range of legal concepts in relation to cultural heritage: from establishing ownership to domestic statutory framework and the human rights element, but our overarching message is that this is an underdeveloped area of law in great need of reform. We propose that this sector needs clear legal guidance to establish an ethical and all-encompassing approach to cultural heritage, to facilitate fair and binding outcomes for all stakeholders.

Conceiving Change: In Vitro Fertilisation - Past, Present and Planning for Scots Law Practitioners

By Caroline Erentz, Sakshi Sharma and Valentina Menéndez Ron

Caroline, Sakshi and Valentina were law student scholars, participating in the WS Society Summer Scholarship programme during July 2023. This article summarises their research and presentation.

“Around 17.5% of the adult population, roughly 1 in 6 worldwide, experience infertility, showing the urgent need to increase access to affordable, high-quality fertility care for those in need.”

— World Health Organisation, April 2023.

IVF: Where it all began

In Vitro Fertilisation (IVF) is defined as a type of fertility treatment where reproduction takes place outside the body: “in vitro,” Latin, for in the glass. The UK has been an exceptional pioneer in IVF research, marked by significant breakthroughs in reproductive medicine. Notably, the world’s first successful births resulting from IVF procedures occurred in the UK, with the birth of a baby girl in Manchester in 1977, and a baby boy in Glasgow in 1979. The controversial impact of these momentous events resulted in the ‘Committee of Inquiry into Human Fertilisation and Embryology’ being formed in 1982. Two years later the Committee published their findings, commonly referred to as ‘The Warnock Report of 1984,’ which precluded The Human Fertilisation and Embryology Act of 1990 (HFE 1990). This legislation established the Human Fertilisation and Embryology Authority (HFEA) who are responsible for regulating, monitoring, and licensing human embryo research.

It is noteworthy that a substantial portion of the Warnock Report discourse remains relevant in present day discussions. The report astutely acknowledged the vast spectrum of moral sentiments and the inherent conflicts between religious, humanist, and philosophical convictions. It duly recognised the existence of a pluralistic society and emphasised the role of law as a reflection of prevailing moral acceptability. In the Warnock Report, the emergence of scientific advancements and medical technologies pertaining to human fertilisation was acknowledged as a catalyst for novel legal implications:

“The development of science and medical technology in the field of human fertilisation opens up many new issues for the law.”

— The Report of the Committee of Inquiry into Human Fertilisation and Embryology, 1984.

IVF Regulation and Reforms

It is important to acknowledge that whilst healthcare is devolved, assisted reproduction is a reserved matter. Furthermore, the ECtHR expanded Article 8 of the European Convention on Human Rights, to couples or individuals looking to procreate via IVF in Evans v. United Kingdom, 43 E.H.R.R. 2 [2007]. While the Article does not support an absolute right to assisted reproduction, it is noteworthy that when considering domestic law, we all have a right to have a family - whether this is achieved via IVF or not.

Several provisions of the HFE 1990 Act underwent revisions in 2008, driven by the objective of aligning it more effectively with the requisites of the 21st Century. However, the 1990 and 2008 HFE Acts are still criticised for their limitations in practice. The 1990 legislation is still predominantly used to make contemporary decisions on IVF, despite significant changes in the fertility sector. The HFEA began a review of the law in February 2023, recognising that scientific possibilities and societal views, have once again, progressed at a rate faster than the current legislation can accommodate. The increase in private treatments raises questions about regulation and compliance. Compared to other UK regulators, the HFEA have quite narrow powers. Changes relevant to this research that are being considered are ‘futureproofing’ the law to ensure it is better able to respond to scientific developments and innovation; without re-opening the HFE Act every time:

“Scientific and social attitudes move on far quicker than law and under the current regime, innovation is left in the waiting room until approval is given to reopen the Act.”

— Julia Child, Chair of The Human Fertilisation & Embryology Authority (HFEA), February 2023

The HFEA acknowledges that the United Kingdom holds a prominent position in the field of fertility innovation worldwide and aims to safeguard and reinforce this status. To accomplish this goal, the HFEA seeks to obtain the authority to approve trials involving low-risk novel practices and embryo research.

The emergence of 'Find my DNA' platforms, exemplified by 'My Heritage,' has raised apprehensions regarding the changes in the donor anonymity law implemented in 2005. In response, the HFEA proposes to mandate the disclosure of parental and donor information concerning associated risks. The inclusion of implications counseling is advocated, alongside the explicit enshrinement of patient safety as a fundamental principle within the legislation. Additionally, an opt-out consent model is suggested as part of the proposed measures. Lastly, the HFEA intends to facilitate automatic record sharing between the public and private sectors of fertility services.

IVF and the Future

IVF has advanced significantly and there are many reasons why we need to embrace IVF and become knowledgeable in the topic. Since the first IVF boy and girl born in the UK, +10 million babies have been born using the treatment. Assisted reproduction can offer benefits and guarantees, that a natural birth cannot. It offers multiple reproductive options to people who may struggle with infertility. It suits the concept of the ‘new’ family, which has moved on significantly from the ‘nuclear’ family structure. For a multitude of reasons, the world fertility rate (expressed as the number of children per woman) has been falling steadily since the 1970s. There is also a sharp decline in male fertility, although reasons for this are contentious. If the fertility rate keeps declining, IVF will become a popular choice for those looking to reproduce. In 2021, HFEA statistics showed that patients in heterosexual relationships accounted for 90% of all IVF patients. The number of IVF patients in female same-sex relationships increased by +33%. Single patients increased by +44% while the number of surrogates declined by -7%.

Global IVF is currently valued at $23.6 Billion Dollars, with a Compound Annual Growth Rate of 5.72% expected between this year and 2030. In the UK, the IVF market is currently valued at $514 Billion Dollars, expected to increase to $928 Billion in the next 3 years.

One significant contributor to the IVF popularity surge is the emergence of Preimplantation Genetic Testing (PGT), a form of IVF that enables the screening of factors responsible for implantation failure, miscarriages, and birth defects. Moreover, recent advancements in In Vitro Gametogenesis (IVG) have demonstrated the transformation of skin cells into healthy eggs in mice, eliminating the necessity for biological sperm or eggs. The link between IVG and Stem-Cell Derived (SCD) methods further paves the way for the realisation of ‘designer babies’ or scientifically termed as ‘preference matched offspring.’ Researchers are extensively exploring the boundless possibilities of embryo and stem cell research, with ongoing investigations into additional techniques such as Mitochondrial Donation Treatment (MDT). This innovative approach facilitates the prevention of mitochondrial diseases by creating an IVF baby with DNA contributions from three individuals.

These developments give rise to apprehensions across various legal domains, and for our study, we examined them from the perspective of family law.

 IVF and Family Law

As well as the HFE consultation, in March 2023, the Scottish, and England and Wales Law Commissions published a report on surrogacy proposing reforms. It has been recognised within the profession that IVF and surrogacy cases present legal challenges, as they involve complex issues of parenthood, which can vary depending on how the child was conceived and the relationships among the parties involved. The legal landscape surrounding these cases can be multifaceted, demanding an understanding of the diverse circumstances of the child’s conception. These laws governing the establishment of parental rights consider factors such as genetic connections, residence, and marital status.

Current laws do not adequately reflect the new family structure. The Children (Scotland) Act 1995 s15(1) defines ‘parent’ as the genetic father or mother. The HFEA 2008 s33 defines the legal mother as the woman who carries the baby, providing for when a woman becomes pregnant through artificial insemination, egg donation or surrogacy. The HFE 2008 Act provides that where a woman is the surrogate - whether or not the embryo was created by her husband - then the husband will be treated as father of the child. This may raise abuse concerns as the husband could choose to block the parental order.

If a surrogate carries gametes of one genetic parent, they can apply to the court for a parental order. This must be done within 6 months of the birth and the couple must be in an enduring family relationship. A core criticism has been the time taken to obtain these parental orders. The groundbreaking decision in AB and XY [2023] CSOH 46 serves as a powerful example of embracing non-traditional family structures by granting parental orders to a couple involved in surrogacy which had separated by the time the application was made. This ruling emphasises the importance of adapting laws to reflect the reality of contemporary family dynamics and prioritising the welfare of children in such arrangements. Furthermore, decisions like Re X, Y, and Z [2022] EWHC 198 (Fam) illustrate that flexibility within the legal framework can be exercised in exceptional cases. In this instance, the court extended the time limit for applying for parental orders to safeguard the best interests of the children born through IVF surrogacy, acknowledging the complexities involved.

The principle of best interests of the child has been recognised on numerous occasions legally. In Re L (Commercial Surrogacy) [2010] EWHC 3146 a commercial surrogacy had been made lawfully in the USA. This would not be lawful in the UK, as expenses should be authorised by the court. A Parental Order was given for the best interests of the child; reflecting an area of reform to encourage surrogacy within the UK, rather than paying for it elsewhere. In X Re [2020] EWFC 39 the intended father passed away before the birth. His widow was not eligible to apply for a parental order (s54) because she had no genetic affiliation. She applied jointly with the deceased, so to acquire legal parentage. In cases like this, the Family Court has stretched the outdated surrogacy laws in the UK by taking into account the child’s best interests.

There are limited safeguards in law to monitor commercial surrogacy, which whilst criminal, could run the risk of exploitation. Surrogacy arrangements are non-enforceable; a surrogate could be paid and decide to keep the child with no remedy to recover payments. There is a grey area over reasonable expenses with no way of ensuring these are being spent in a permitted manner: it may be speculated that the courts’ willingness to allow reasonable expenses, without explicitly specifying what these are or monitoring them, renders this provision meaningless. If prospective parents change their mind, this may leave the surrogate with unexpected expenses…or a baby. If the surrogate changes their mind, prospective parents may be left without the child they were hoping for. Interests of all parties involved could be better protected.

Further proposals in the surrogacy review include creation of a National Register, Regulator and Surrogacy Pathway. The surrogate should be 21+; intended parent(s) must be 18+. One intended parent and surrogate should have a UK connection. The surrogate can withdraw consent six weeks following birth; if consent is withdrawn prior to birth the surrogate is the legal parent. If consent is withdrawn after birth, the intended parent(s) are the legal parents, but the surrogate could apply for a parental order.

A Private Members Bill, known as the Fertility Treatment (Employment Rights) Bill, was presented in March 2023. This proposed legislation aims to mandate that employers grant their employees leave to attend appointments related to fertility treatment. The introduction of this Bill serves as a tangible manifestation of the increasing demand for in vitro fertilization (IVF) and the parallel call for accommodating and compassionate policies in this domain.

To position the United Kingdom as a prominent international exemplar in IVF accessibility, a comprehensive strategy necessitates both the reform of IVF-related legislation and a meticulous scrutiny with the intention of instituting regulations pertaining to surrogacy, given their inherent interconnectedness.

 Conclusions

While IVF was at one point novel, it is now a leading choice of fertility treatment. The interplay between technology and regulatory constraints has significant implications for practitioners. The law's inability to keep up with rapid changes has highlighted the need for practitioners to prepare for legislative updates and respond to emerging situations effectively.

The IVF industry's growth offers economic opportunities and personal autonomy but calls for a careful balance to address long-term implications. Reflecting on ‘The Warnock Report,’ the legal industry must remain proactive in campaigning, questioning grey areas, and ensuring adequate legislation to protect human rights in the ever-evolving landscape of technology, science, and society.

Moving forward, we must prioritise foresight and responsiveness in the legal system to navigate the challenges posed by the rapid pace of technological and scientific progress. By doing so, we can promote responsible technological advancements while safeguarding the well-being of individuals and society as a whole.

Legal Aid - What is the Cost of Justice?

By Asymina Aza, Matthew Paton and Michael Sweeney

Asymina, Matthew and Michael were law student scholars, participating in the WS Society Summer Scholarship programme during July 2023. This article summarises their research and presentation.

Scotland has had a long history of ensuring access to justice through publicly funded legal aid. Statutes from 1424 and 1535 provided minimum levels of funding for those who could not afford representation. In 1784, what can be described as a “means and merit test” was adopted to provide legal assistance and was introduced for civil cases before the Court of Session. Agents representing the poor in civil and criminal cases were formally recognised in 1825. Scotland has continued to uphold this legal tradition in the modern era and ensure that its inhabitants are provided with a legal aid system. 

The contemporary provision of legal aid is governed by the Legal Aid (Scotland) Act 1986. The Act provides the following types of legal aid: (1) Advice and assistance; (2) Advice by way of representation; (3) Civil and criminal legal aid; and (4) Children’s legal aid. 

The Act also established the Scottish Legal Aid Board (SLAB) and the Scottish Legal Aid Fund to provide legal aid, advice, and assistance in Scotland. SLAB replaced the Law Society of Scotland as the administrator of the legal aid system to avoid the conflict of interest between the profession both administering the legal aid fund and paying fees to its members.

The current legal aid framework has been subject to various reviews, the most extensive being ‘Rethinking Legal Aid,’ a 2018 Review by Martyn Evans. Recurring criticisms of the current legal aid system note its complexity, potential to contribute to unmet legal needs, and the tensions it creates between legal practitioners, SLAB and the Scottish Government. 

This article will briefly compare the legal aid systems across the United Kingdom’s three jurisdictions. It will then build upon this to explore the criticisms of the current legal aid framework, discuss the potential impacts of raising practitioners’ legal aid fees, and conclude with the practical implications of such a reform with a view to cost. 

Comparative Jurisdictions

The scope of legal aid differs significantly between the UK’s three jurisdictions, as each has its own regulatory framework governing the provision of legal aid. In Scotland, as outlined above, legal aid is governed by the Legal Aid (Scotland) Act 1986 and the Legal Aid (Scotland) Regulations 2002. In England, legal aid is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO), and lastly, in Northern Ireland, legal aid is governed by the Legal Aid and Coroners’ Courts Act (Northern Ireland) 2014 and the Access to Justice (Northern Ireland) Order 2003. 

Scope of Legal Aid in the UK

The eligibility criteria vary appreciably for civil legal aid, of which the financial criteria prove to be the decisive factor shaping the scope of legal aid. In England, an applicant must have less than £8796 of disposable income per annum (£733 per month); in Northern Ireland, an applicant must have less than £9937 of disposable income. While in Scotland, this is more than double at £26239.2. In practical terms, this effect is evidenced when considering what percentage of the population is eligible for legal aid. In England and Wales, for instance, 25% of the population is eligible to receive legal aid, in contrast to Scotland, whereby 75% of the population is eligible to receive legal aid. All three jurisdictions enforce a merits test in addition to the means-based test, which are broadly similar. In brief, they examine whether an applicant has a ‘reasonable’ chance of winning the case. Aside from the financial eligibility criteria, another significant difference between the provision of legal aid in Scotland and their southern neighbours is that LAPSO excludes a much wider array of cases based on area. For instance, LAPSO does not grant civil legal aid for cases concerned with conveyancing, personal injury, damage to property, trust law, wills, social security claims at first instance, company/ partnership law, defamation, claims in tort for negligence, trespass, assault, and breaches of statutory duty, as well as judicial review cases. In contrast, legal aid in Scotland excludes only defamation cases, simple divorce proceedings, and petitions by a debtor for his own sequestration. 

LAPSO has been criticised for restricting access to legal aid in England and Wales by lowering the threshold for financial eligibility and reducing the types of cases for which legal aid is available. Equally though, the Scottish system has equally been criticised by practitioners for stretching existing resources far too thin. Respondents to a Scottish Government consultation on legal aid reform in 2020 emphasised that practice areas such as housing, debt, employment, domestic abuse, immigration and asylum were grievously underserved by private providers due to underfunding, resulting in excessive burdens on overstretched third sector providers, such as citizens’ advice bureaus.

Criticisms of the Current Framework

Complexity

“ A central criticism of Scotland’s current legal aid framework is that it is too complicated for service users to navigate efficiently”

The system of eligibility and contributions for the various types of legal aid can be challenging to understand, as are the supplementary orders and regulations to the 1986 Act. This complexity creates confusion for service users and adds to the workload of those who deliver legal aid services, resulting in time-consuming applications that foster tensions between the legal practitioners and SLAB.

This criticism extends to attempted reforms of the legal aid framework. It has been suggested that the 1986 Act created an overly rigid legal aid framework, the consequences of which have been that the legal aid system has been unable to swiftly adapt to changes, innovate or improve. For example, it was noted that legal aid payments are too focused on funding court appearances rather than on preparation and settlement work which are key features of modern litigation. Any substantial reform of the legal aid framework - beyond minor changes which can be achieved by secondary legislation - will require a process of review and approval of the Scottish Parliament, which under any circumstance is a time-consuming and resource-intensive process. 

Unmet Legal Need

The current legal aid framework contributes to the issue of unmet legal needs. Unmet legal needs are evident in rural areas where registered legal aid solicitors often decline to take on legal aid cases where they prove to be less profitable than privately funded cases. Geographical difficulties also prove to be a major consideration for practitioners, especially when practitioners must consider the cost and time of travelling to rural areas. 

The 2018 Review highlighted that the current fee system often results in the needs of disabled clients not being met because fees for advice and assistance fail to reflect the extra time needed by a solicitor to comprehensively address the legal issues faced by disabled individuals. This point is pressing, as disabled individuals are statistically more likely to be involved in civil disputes than other demographic groups. 

Financial Problems

The current payment system causes cashflow difficulties for legal service providers because the system administers payment following the conclusion of a case. The consequences of this approach are that high costs are incurred, and service providers undertake a large volume of work without receiving payment for long periods (which are often subject to substantial abatements).  

Sustainability of Funding Increases

There is a concerning trend in Law Schools across Scotland: limited exposure to classes discussing legal aid. This reality reflects the broader challenges young lawyers face when considering a career in legal aid. With private practice firms offering significantly higher earnings, it is no surprise that newly qualified solicitors are unlikely to consider a career in legal aid work. 

The Law Society of Scotland has recognised this issue and has called for fee increases, aiming to prevent further attrition of solicitors from pursuing legal aid work. However, it has been argued by the Scottish Solicitor’s Bar Association (SSBA) that increasing solicitors’ fees may only serve as a short-term solution. A boost in the budget is not enough to fix the systemic issues ingrained within the legal aid system. 

One of the principal issues contributing to inadequate funding for legal aid services in Scotland is the Scottish government’s approach to investment. In 2022, the government supplemented legal aid funding by £11 million – an increase which should be acknowledged. Nonetheless, it evidences the government’s limited commitment to sustainably improve legal aid services at a systemic level. The President of the SSBA, Ms Julia McPartlin, expressed how there remains

“…a great deal of mistrust in the Scottish Government”

To bridge this divide, substantial efforts must be made to restore confidence in the legal aid system in Scotland. 

It is important to note that increasing civil legal aid fees would mean increased client contributions. The Scottish Government’s hesitation towards allocating more funding stems from the findings of the 2018 Review, which concluded that a general increase in legal aid fees was not warranted. Arguably though, the Report can be said to have reached this conclusion through an overreliance on the high earnings of a few select legal aid practitioners while failing to take into account the submissions made to them by the Law Society of Scotland, which highlighted that often practitioners are paid less than minimum wage for the hours of work they spend on legal aid cases. The Report called for increased transparency by establishing an Independent Legal Aid Fee Review Board.

In pursuing long-term sustainability for firms specialising in legal aid, the current fee mechanism must be updated. Taking a blanket sector-wide approach when calculating possible fee increases could paint a misleading picture, which would disproportionately impact legal aid firms because the inclusion of marginal legal aid operators could make it more difficult to evaluate what a fair fee should be for firms who carry out large volumes of legal aid work. Marginal legal aid firms largely generate revenue through private practice but carry out small amounts of legal aid work. To include these firms on the same par as firms who take on high volumes of legal aid work could give the impression that they are well funded when that is not the case.

Therefore, it is submitted that an effective strategy should involve increasing fees for select firms in geographically remote places, which would be more effective than implementing a nationwide increase. This would help meet unmet legal needs and encourage solicitors to practice in rural areas. Additionally, from a political standpoint, increased investment in vulnerable communities throughout Scotland could improve public relations and spur the Government to act. 

Increasing funding for legal aid would require the Scottish Government to make potentially difficult financial decisions, such as increases in taxation or redirecting available funds. A circular paradox would arise if future increases were to be sourced through additional taxation. The requirement for increased funding to support those eligible for legal aid is at odds with the fact that taxes must increase to meet this need, which, while improving the service of legal aid, places a greater burden on the taxpayer. Nonetheless, it is important to note that in Scotland, 75% of the population is eligible for legal aid. Thus, the benefits of investing further in the system would be felt by a large portion of Scotland's inhabitants. Despite these challenges, they cannot be relied on as a justification for withholding essential investment in legal aid in Scotland. 

To address the funding disparity, reconsidering how resources are allocated is paramount. Increasingly, cases find resolution through alternative methods. Additional funding should be designated for early intervention and preventative approaches provided by advice agencies. At present, only solicitors can claim legal aid fees. However, there are growing arguments for reforms to allow advice agencies to seek reimbursement for their valuable and informative services. Expanding the scope of legal aid in this way could alleviate solicitors' workload but raises questions about the scope of services that could be funded through legal aid in Scotland. 

In summary, while increasing solicitors' fees may seem like a viable solution to attract and retain legal aid solicitors, it is crucial to recognise the limitations of such an approach. A comprehensive strategy involving increased government investment, sector-specific fee adjustments, and a reimagining of funding allocation is necessary to address the complex challenges plaguing the Scottish legal aid system. These steps can pave the way for a fairer and more accessible justice system for all.

A legal perspective on the ban of Russian and Belarussian athletes across the sporting sphere

By Tim Matthews, Kara McKay and Tanveer Hussain

Tim, Kara and Tanveer were law student scholars, participating in the WS Society Summer Scholarship programme during August 2022. This article summarises their research and presentation.

Politics and Sport

Since the Russian invasion of Ukraine on the 24th February 2022, the politicisation of sport has been cast into a radically new light. The necessity to limit the extent of Russian global influence while recognising the individual freedom for respective athletes to participate in professional sport, has raised challenging questions among sporting bodies and regulators as to whether Russian athletes should compete on the international stage. The significance and complexity of this debate is emphasised when we consider that sporting endeavour is largely entrenched within a broadly definable social context. Indeed,

“ George Orwell famously depicts the clash of international sport as ‘War minus the shooting’”

Athletes are perceived as national representatives and accordingly, international sport is charged with a unique sense of state symbolism that inherently generates preconditional scope for political propaganda. Consequently, sporting success operates with the potential to advance political objectives, enhance state legitimacy and bolster national prestige on the world stage. In response to the widespread sporting bans on Russian athletes, there have been a spectrum of responses. The Russian Olympic Committee (ROC) stated that sporting bodies should ‘refrain from the politicisation of sport’, while Lord Sebastian Coe asserted that,

“…imposing sanctions on athletes because of the actions of their governments goes against the grain”

The inherent political symbolism embedded within international sport, necessitates a regulatory response that effectively weighs a range of competing interest in response to the Russian-Ukrainian conflict.

FIFA

In February 2022, FIFA and UEFA issued a statement in response to Russia’s invasion of Ukraine and subsequently banned Russian teams. The legal basis for any FIFA or UEFA ban arises from their respective regulatory statutes. Article 57(1) of the FIFA statutes and Article 62(1) grant exclusive appellatory jurisdiction to CAS as an independent arbiter. While the CAS Code provides that respective sporting regulation will be applied in litigation, recourse to Swiss law will operate subsidiarily in conjunction with the general principles of international law.

While FIFA is mandatorily obliged to ‘promote cultural and humanitarian values’, Article 16(1) provides scope for the temporary suspension of a ‘member association that seriously violates its obligations’. In the Football Union of Russia’s (FUR) appeal before CAS, FIFA asserted their institutional capacity to self-define FIFA’s policies and values, and the corresponding legal necessity to afford them ‘wide autonomy and margin of discretion’. Contrarily, FUR relied upon Article 4 of the FIFA statutes to contest that FIFA had breached their duties of non-discrimination, equality and political neutrality, as well as their right to participate in sporting competitions under Article 13(1)(e). In the present circumstances, CAS dismissed the appeal and upheld the banning restrictions.

UEFA is equally permitted to adopt FIFA-based reasoning and exclude a member if they have been excluded already by FIFA. While there remains limited scope for future legal challenges under grounds of proportionality; a right to be heard and inconsistent decision-making, FIFA and UEFAs sanctioning of FUR’s right of membership maintains legal standing in their mandatory commitment in promoting humanitarian objectives.

In conjunction with the ECHR, there remains a right to be heard before CAS (B V FINA; Menarini Diagnostics v Italy). Judicial recourse to the Swiss Federal Tribunal (SFT) is permitted on limited grounds such as a lack of jurisdiction, violation of proceduralism or incompatibility with public policy. The standard rules of European law concerning further appeals beyond the SFT apply including the necessity to exhaust domestic remedies and breaching specific convention rights. Critically, the broader underlying jurisprudence of CAS, requires that ‘the severity of the sanction must relate to the gravity of the wrongdoing displayed’. FUR may therefore contend that FIFA may have opted to instigate less restrictive and more proportional sanctions with further consistency in application (Palestine Football Association v FIFA).

The Olympics

In a comparable sense to the rest of the sporting sphere, the International Olympic Committee (IOC) were left with a complex task in navigating an appropriate sanctioning regime against Russian athletes. The dilemma they faced was intensified by the IOC Fundamental Principles which specifies that

“no discrimination is allowed against a country or person on the grounds of race, religion or political affiliation.”

If the IOC were to instigate an Olympic ban against Russian athletes and teams, they would be visibly taking sides in a non-sporting issue, breaking their self-proclaimed principle of political neutrality, and ultimately, harming athletes with potentially no political affiliation with the Russian regime. Contrarily, if the IOC omitted to act, they may be exposing themselves to widespread political and sporting criticism with the potential for mass boycotts.

On the 25th February 2022, the IOC recommended the exclusion of Russian athletes, teams, and officials, from sporting competitions with the possibility of athletes competing neutrally without colours, flags or anthems. The rationale for this decision was firstly, to provide fairness to Ukrainian athletes who were unable to compete as a result of the conflict, and secondly, to ‘protect the integrity of global sports competitions and for the safety all participants’.

Naturally, the Russian Olympic Committee has challenged this recommendation on the grounds that there remains a lack of legal basis for the decision, the recommendation itself was externally influenced by factors ‘far from the ideals of sport and Olympic values’ and ultimately, the effect of such a recommendation entails the discrimination of Russian athletes simply ‘on the basis of nationality and citizenship’. This accords to the broader jurisprudence of CAS.

Intriguingly, while CAS is not necessarily bound by a strict doctrine of precedential decision-making, there are numerous historical instances of Olympic bans enforced in an attempt to secure national compliance with the Olympic Charter. For example, due to the apartheid policy on racial segregation, the IOC instigated a ban on South African athletes competing at the 1964 Tokyo Olympics. This ban lasted until apartheid was repealed in 1991. While the purpose of an Olympic ban is fundamentally intended to secure compliance, in this particular case, the banning regime did not catalyse the amendment of sporting practices. Manifest transformation was the result of the downfall of apartheid itself. In many ways, an Olympic ban therefore appears a largely ineffective mechanism to amend discriminatory sporting practices and resultingly operates to harm innocent athletes without achieving the desired end. Thus, the preferred approach of the IOC is to work alongside NOCs where possible to amend their practices and achieve favourable outcomes.   

Wimbledon

In April 2022, the AELTC announced that all Russian and Belarussian players would be banned from participating at Wimbledon this year. Both the ATP and the WTA condemned the decision as inconsistent with fundamental principles of the tour – that eligibility should be based solely on merit. In response to the implementation of such a ban, Wimbledon has been stripped of all ranking points on the basis that the decision “undermines the integrity” of the ranking system. Fo some, the championship had been reduced to an exhibition event, with

“Naomi Osaka, labelling participation as ‘pointless’. ”

Whilst team competitions, such as the Olympic Games, are often a source of state prestige and power, individual sports must be distinguished. This distinction between individual and team may have important legal implications, specifically with regards to proportionality. Considering the underlying CAS jurisprudence, any measure adopted must be both capable of and necessary to achieve the aim (Lyukman Adams et al. v. IAAF). Any impact on individuals affected must be balanced against the overall interest in pursuing the aim. Whilst it is widely accepted that limiting Russia’s global influence is a legitimate aim, there is doubt as to whether a blanket ban across all Russian individuals is a proportionate means of achieving this. 

This raises complex questions as to what extent the actions of a national government can be attributed to individuals. One would argue that excluding all Russian individuals in response to a conflict in which they play no part is ‘draconian’ and unproportionate. This notion is reinforced by considering the approach of the ATP who have banned participation of national teams, for example in the Davis Cup, yet have allowed individuals to compete as ‘neutrals’, or the FIA’s approach of allowing Russian individuals to compete in motorsport provided they do so under a neutral flag. Both represent an effort to limit Russian influence without severe interference with the freedom of individuals

The ban raises issues of potential discrimination, however, it is unlikely that any player could seek redress under the Equality Act 2010. The protected characteristic of race is defined under s.9 as encompassing nationality, ethnic origin and colour. Whilst it’s recognised that Russians have been treated less favourably than non-Russians on grounds of nationality this will not be unlawful as the decision falls beyond the scope of employment. For employment status to be engaged, under s.83(2), a contract of service must exist rather than a contract for services.

Interestingly, it’s likely that a similar ban introduced at the Australian open would be unlawful under corresponding Australian legislation. Such a ban would violate s.9 of the Racial Discrimination Act 1975 as it has the ‘effect of nullifying the enjoyment and exercise of their freedom’ to compete in the sport of tennis. However, this is dependent on such participation being characterised as a ‘cultural activity’. Alternatively, redress may be sought under the employment provisions in s.15, which includes contracts for services, unlike in the UK. A challenge may also be brought under s.71 of the Victorian Equal Opportunities Act 2010 which specifically prohibits discrimination in sport. This provision protects from discriminations based on race as well as political belief.

Contracts and Sponsorship

Over recent years, Russian companies have played a central role in the sponsorship of international sporting events. In response to Russia’s aggression against Ukraine, many clubs and federations have sought to end relationships with Russia and Russian sponsors. Formula 1 has stripped Russia of the Sochi Grand Prix, while

“UEFA has terminated its sponsorship contract with Russian oil giant, Gazprom, which was worth around £80 million.”

These developments raise important questions regarding the legal basis of right holders to terminate such contracts.

Depending on the drafting of the contract, there may be various termination options, such as Force Majeure. This is particularly relevant in relation to events which have been cancelled – however it is doubtful as to whether it is physically impossible for Russia to host competitions. Additionally, ‘damage to reputation’ clauses may allow right holders to end relationships with Russian companies without incurring liability. Difficulties may arise where such a clause refers to ‘the conduct of the sponsor’ bringing such damage, as this would require the actions of government to be attributed to a separate entity. Ideally, ‘negative impact on reputation flowing from the sponsor’ is all that would be required; however, this is rare in practice due to the broad discretion conferred on the right holder. 

In the absence of any of the above, a right holder may be able to pursue a common law mechanism of avoiding liability including the doctrine of frustration, as well as illegality, which may become relevant where sanctions make performance of the contract illegal. A possible situation which may arise would be where western banking sanctions against Russia makes sponsorship payment to the right holder illegal. Terminating sponsorship agreements with Russian companies is not straightforward for right holders, hence many may simply ‘walk away’ by unilaterally tearing up the agreement and removing any branding from venues or club kits. It goes without saying that comes with substantial risks – Russian sponsors may claim for repudiatory breach and therefore seek damages. An illustration of this point would be Formula one team Haas’ ongoing dispute with a previous Russian sponsor. 

 Conclusion

In summary, the international sporting community has joined the rest of the world in condemning Russia’s invasion of Ukraine, by introducing sanctions against athletes in an effort to limit Russian influence. But ultimately, it is yet to be seen whether such bans will stand up against notions of non-discrimination, however as outlined above, the scope for any challenge is narrow.

The Bill of Rights Bill: Continuity and Change

By Christiana Cameron, Evan Adair and Shona Norbash

Christiana, Evan and Shona were law student scholars, participating in the WS Society Summer Scholarship programme during July 2022. This article summarises their research and presentation.

On 22 June 2022, the UK Government published its ‘Bill of Rights’ which is designed to replace the Human Rights Act 1998 (HRA). The Government’s position, as outlined by Justice Secretary Dominic Raab, is that the present human rights framework is overly expansive, undermines the democratically legitimate power of both Government and Parliament, and has resulted in the discrediting of human rights in the public imagination.

“The Government argues that the current approach, therefore, poses a threat to the protection of human rights at all”

The proposals have, however, been met with strong opposition from the legal profession generally. For example, former President of the Supreme Court Lady Hale has stated that ‘the UK Government is trying to reduce the protection given to human rights in UK Law.’

This short paper analyses the potential impact that some important aspects of the proposed bill may have on the protection of human rights in the UK. It explores an addition, a change, a removal, and something which has remained the same as in the HRA.

An Addition - Section 14 Bill of Rights

One addition which will likely have considerable impact is section 14, which removes the right for those impacted by British extra-territorial actions to rely on Convention rights in UK courts. There are two crucial doctrines to consider when determining the Government’s reasoning for including such a section: the margin of appreciation and the living instrument.

The government have been vocal critics of the living instrument doctrine, arguing it has been used to justify decisions by Strasbourg the original drafters of the Convention would not have envisaged. They believe states are not afforded enough say in the expansion and adaptation of certain rights and that Strasbourg is encroaching into state sovereignty. The margin of appreciation is meant to address this concern by allowing states a degree of flexibility where there is no European consensus on an issue. The Government contends the current approach to this is insufficient. Through the introduction of the Bill, they seek to highlight the supremacy of Supreme Court decisions and encourage divergence from ECtHR jurisprudence.

Section 14 on Extraterritorial Jurisdiction embodies these criticisms. Plainly, it removes the right for a person to rely on convention rights when they are impacted, or would be impacted, by overseas military operations. This goes against extensive Strasbourg case law. In Bankovic v Belgium - 52207/99 - (2001) ECHR 890, the court established that the Convention applies extraterritorially when a state exercises ‘effective control’ over another territory. This notion has been affirmed in many cases since, notably including Al-Skeini a.o. v the United Kingdom - 55721/07 - [2011] ECtHR in which the UK was held to have exercised authority and control over six Iraqis citizens killed.

The UK Government has voiced their disapproval of the expansion of Convention rights beyond purely territorial application, arguing Strasbourg’s use of the ‘effective control’ test lacks the necessary foundation in consensus between states parties.

“Arguably, the decision to expand the reach of rights protections in such instances should be made by elected national parliaments rather than unelected Strasbourg judges.”

It is crucial to highlight that if Section 14 is implemented, the ability of persons to rely on UK rights protections abroad would be significantly hindered, regardless of whether the Government’s arguments have any merit. This would be in direct contravention of the established case law of the ECtHR and will likely lead to an influx of cases directly to Strasbourg.

A Change - Section 2 HRA

One area of apparent change under the Bill of Rights is the relationship between UK courts and the European Court of Human Rights. Currently, s2(1)(a) of the HRA requires UK courts to ‘take into account’ Strasbourg jurisprudence, but the bill contains no equivalent provision. Instead, in s3(1), the bill designates the United Kingdom Supreme Court as the ‘ultimate judicial authority’ in interpreting the convention. While this appears to be a radical step, it may not have a significant impact in practice.

The current judicial approach to the requirement of taking Strasbourg jurisprudence into account is to recognise that this does not require total compliance. In Manchester City Council v Pinnock [2010] UKSC 45, for example, Lord Neuberger suggested it need not be followed where the reasoning of the European Court was based on misunderstanding, where there was no clear and consistent line of decisions, or where the effect of compliance would be contrary to a fundamental aspect of domestic law.

Read in more detail, the proposed bill is not dissimilar. s3(3)(a) of the Bill outlines that a court may adopt an interpretation of the Convention which expands the protection granted by UK courts provided it has no reasonable doubt that Strasbourg would do so.

“The instances in which Strasbourg jurisprudence is currently taken into account are likely to be the same instances in which UK courts would be confident in what Strasbourg would determine.”

It is also notable that this approach to the relationship with Strasbourg is not entirely at odds with the intended functioning of the Convention. Protocol 15 outlines that states themselves are primarily responsible for implementing Convention rights, enjoying a margin of appreciation in doing so, and are subject to the supervisory jurisdiction of the European Court. The Government’s contention is that the proposed s3 more accurately reflects this approach by freeing domestic courts to respect British concerns and more clearly expressing Strasbourg’s subsidiarity. Indeed, the constitutional courts of both Italy and Germany already hold that Strasbourg’s jurisprudence can be reviewed for compliance with their respective constitutions for which they are the sovereign interpreters. The explicit adoption of a similar position would not be unique amongst state parties.

Upon greater study, then, it appears this seemingly radical step would redefine the relationship between the courts rather than end it and may yet do so in a way with more political meaning than legal effect.

A Removal - Section 3 HRA

Section 3 HRA was intended to be the primary method of human rights enforcement in the UK. It is an interpretative duty, requiring courts to find legislation as compatible with convention rights “if it is possible to do so”. It is abolished under the Bill of Rights Bill. The Government’s rationale is to “rebalance” the relationship between Parliament and the courts. It claims that courts have used s3 to adapt - rather than just interpret - legislation. By removing s3, it will be for Parliament, rather than the courts, to correct any legislation that is incompatible with convention rights. Nonetheless, the vast majority (79%) of respondees to the Government’s consultation on the Bill of Rights did not wish for s3 to be repealed.

There is some merit in the Government’s claims. The current interpretative duty appears incredibly wide. As Lord Steyn noted in R v A (No.2) [2001] UKHL 25, no ambiguity is required before s3 can operate. Furthermore, words can be added or deleted from legislation to achieve compatibility. In Vanriel v Secretary of State [2021] EWHC 341,5 the Court deleted 25 words of the British Nationality Act 1981 to create a discretionary power to allow more citizenship requirements to be dispensed with in certain cases.

The opposing view, however, is that the impact of s3 has been overstated. The provision is rarely used - Powell and Needleman found just 25 uses of s3 in an eight year period. They surmise a possible reason for this is that the same result can be reached using “normal” interpretative principles, without resorting to s3. Furthermore, when s3 is used, the courts show deference to the will of Parliament. For example, in Ghaidan v Godin-Mendoza [2004] UKHL 30, Lord Nicholls explained that courts can only “go with the grain” of legislation.

“Even when more substantial changes are made to legislation using s3 HRA, courts can be said to be effecting parliamentary intention - after all, Parliament intended the interpretative duty to be used.”

Ironically, the arguments such as the low number of cases using s3 which demonstrate why the Government’s claims are unfounded, also suggest that its removal may not be so significant in practice. Therefore, the removal of the main method of enforcing convention rights may only be theoretically significant.

A Continuation - Section 4 HRA

While the s3 power of interpretation is omitted from the proposed bill of rights, the s4 power to issue a declaration of incompatibility is one element retained. As presently, the courts will be able to issue such a declaration under s10(2). The declaration will continue to have no effect on the validity or enforcement of a provision per s10(3), and a relevant minister will continue to be able to amend legislation in response by ‘remedial order’ under s26.

Despite this seeming continuity, however, this remedy is not unchanged. Without an equivalent of s3, declarations of incompatibility will no longer be a remedy of last resort. In every situation where courts can currently interpret an incompatibility away, they will only be able to declare the incompatibility and encourage the Government or Parliament to respond. The Government argues this is a positive, with determinations over resolutions moved from an appointed to an elected body. It will, however, delay access to remedies. Where courts can currently read-in compliance immediately, a response by Government or Parliament will now be required, an unavoidably slower process.

The apparent similarity is also affected by the addition of a section concerning the proper place of Parliament. Section 7 would apply where a court was determining whether to issue a declaration of incompatibility, and, if in doing so, it must decide whether the effect of a provision strikes an appropriate balance between different policy aims, different convention rights, or the convention rights of different persons. In these cases, the court must regard Parliament as having decided that the legislation in question strikes such a balance and give the ‘greatest possible weight’ to the principle that Parliament should make these decisions.

“For all its legal terminology, this is a notice for courts to back off by a Government who does not believe their interference is appropriate.”

It aims to limit judicial freedom and arguably amounts to a usurpation of the proper sphere of the judiciary.

Cumulatively, then, changes in the bill mean that the continuity of the power to declare legislation incompatible is only superficial. Relying on declarations as a primary remedy rather than a last resort will slow access to justice and discouraging courts from questioning Parliament will reduce independent oversight. If human rights protections exist to defend vulnerable minorities, these reforms do nothing to advance their place.

Conclusion

Some aspects of the proposed Bill of Rights, therefore, are likely to have more impact on rights protections in the UK than others. The proposed change to domestic treatment of Strasbourg jurisprudence, for example, may prove to be significant in a political sense rather than in its legal impact. Similarly, the infrequent use of Section 3 HRA suggests that its removal may be of more theoretical than practical consequence

Contrastingly, there is no doubt that the addition of Section 14 will reduce the protections afforded to people affected extraterritorially. Moreover, despite the retention of declarations of incompatibility, increased reliance on this due to the removal of Section 3 HRA will delay access to remedies, and Section 7 of the Bill will limit the Court’s ability to independently check Parliament.

The proposed Bill of Rights demonstrates that the Government is actively trying to limit access to Convention rights in UK courts. The Bill does not go so far as to amount to a departure of the Convention in all but name, and it is not entirely inconsistent with the Convention’s intended method of operation. Nonetheless, the removal is concerning. It will still hinder access to rights, and the UK’s relationship with Strasbourg will be redefined.

The Legal Issues of the Metaverse and NFTs - The Good, The Brag, and The Ugly

By James Beattie, Rebecca Nally and Lewis Walker

James, Rebecca and Lewis were law student scholars, participating in the WS Society Summer Scholarship programme during July 2022. This article summarises their research and presentation.

Non - Fungible Tokens (NFTs), underpinned by blockchain technology, and the Metaverse represent two technologies for which regulation approaches new frontiers. It is predicted that the metaverse will rival the impact of the internet and the use of NFTs skyrocketed last year in association with the digital art market. This fostered a culture of bragging rights, obscuring both the legal implications and the genuine value of NFTs. Although the ethereal nature of these technologies gives rise to numerous legal issues, serving to make NFTs and the Metaverse the wild west of law and technology, this article will consider the problems of property, privacy, and the environmental impact arising from such new technologies.

The Setting

All three technologies are related; cryptocurrencies and NFTs are the basis of economies and ownership in the Metaverse. The Metaverse is an alternate reality that people can be ‘in’, where everything is connected through a global and virtual network. It is made more immersive through augmented and virtual reality which allows users to feel what their avatar is feeling. Secondly, the blockchain is technology that stores data in a decentralised way. It is an open-source ledger hosted across multiple computers that maintains a record of transactions. NFTs are a line of code on the blockchain attributing ownership of an asset to an individual, acting as a robust proof of ownership on the blockchain. They are essentially virtual receipts on the blockchain and can be used for a multitude of reasons such as ticketing, art, or court document authentication. As per the COO of Crypto.com, ‘[NFTs] will be the tool that represents any digital type of assets in the virtual world going forward. So the applications are tremendous.’

“The absurdity of the prices and the hype surrounding the digital art world have distracted from the good aspects of NFTs and the Metaverse.”

For example, due to its immersive environment, the Metaverse could be used as a tool to help people suffering with PTSD by allowing them to simulate the event causing such stress, while in a safe environment. Furthermore, NFTs allow buyers to financially support artists and in turn provide artists with a wider market and larger potential income.

Thomson Reuters, Glossary, Blockchain

The Brag: Property Rights

“As a legal concept, NFTs present a definitional headache.”

Generally, NFTs do not confer intellectual property rights to the purchaser. What the buyer receives is a right to display the asset but there is no legal decision on whether an NFT counts as proof of title to a digital version of the original asset. Owning an NFT merely grants an individual bragging rights due to their possession of a digital asset and the value is mostly intrinsic due to an asset’s potential cultural significance.

Despite the lack of legal decision on the issue, NFTs are designed to confer proof of title as they purport to represent ownership of another asset. Instead, NFTs have been considered an asset constituting property by the English courts, albeit in obiter dicta. Judges have been careful when defining crypto assests as property, espousing in AA v Persons Unknown, that ‘there is a difficulty in treating Bitcoins and other crypto currencies as a form of property.’ Nevertheless, the court was persuaded that crypto assets (arguably including NFTs following Osbourne v Persons Unknown) are property - in line with Lord Wilberforce’s criteria set out in National Provincial Bank v Ainsworth.

In Osbourne Judge Pelling said that ‘there is at least a realistically arguable case that [NFTs] are to be treated as property as a matter of English law.’ However, he was cautious in his approach, fearing ‘issue[s] at some stage as to whether non-fungible tokens constitute property for the purposes of the law.’

Given that owning an NFT rarely assigns IP rights alone, this hamstrings the pursuit of a Metaverse mirroring the real world. NFTs cannot properly underpin the Metaverses’ ownership system without legal recognition of their ‘proof of title’ function. According to Kasiyanto and Kilinc, ownership in the Metaverse can be divided into licensing and actual ownership. The first, where the platform provider retains ownership and licences out use to users (think cosmetic items in a computer game or virtual land in future Metaverses), severely limits the potential of the Metaverse. Instead, true ownership is the ideal implementation of Metaversal property law.

Currently, NFTs themselves are mainly governed by IP law which alone will not be enough to facilitate their intended function in the Metaverse. Think of jumping into a Metaverse under current rules. You have purchased virtual land, a home, and more but your access to these is at the whim of the platform provider. If the virtual asset is deleted, all you have left is ownership of an NFT. For users this would be contradictory to the reason they purchased the NFT: to own the associated asset. Thus, the deletion should be recognised as property right infringement. Without legal recognition of the proof of title function of NFTs, the Metaverse’s intention of mimicking reality cannot be fulfilled.

“People may brag about owning their NFTs now, and their estate in a future Metaverse, but without virtual property law, that is all they will have the right to do.”

The Brag: Privacy

The release of a fully functioning sophisticated Metaverse is guaranteed to generate unprecedented excitement. However, jumping into the Metaverse conceivably incurs the surrender of an unprecedented amount of personal data to the relevant controller.

To illustrate, take the Metaverse when it reaches its zenith: a virtual reality where you can vividly see, feel, and interact with the world and other users around you. Along with the personal data users are already accustomed to handing over at account creation pages, the Metaverse will realistically require a much deeper and intimate set of personal data to properly achieve this. Along with biometrics, this may include physiological and emotional response data.

This will incur an extreme amount of data analysing, to the point where the platforms will understand users better than themselves. Feeling hungry? An advert for Colonnades at the Signet Library appears. Logically, data protection schemes, such as the GDPR, will be hovering over every line of code and policy used to implement each virtual world. Moreover, the Metaverse likely represents their biggest challenge. Using the GDPR as an example, it will need an upgrade, possibly even a complete overhaul.

“Blockchain technology inflates the challenges in an era where personal privacy is already surrendered to digital convenience.”

As mentioned earlier, the various existing blockchains are mainly open source. This means that they are accessible without restriction to the public, each containing vast amounts of metadata, which can be used to identify users. This presents immediately apparent issues surrounding data protection.

Blockchain design philosophy of unlimited public access conflicts with the basic principles of data protection and runs afoul of the various statutory instruments used to enforce them. Currently the UK complies with the GDPR and has the Data Protection Act 2018 to implement these regulations in national law. The current usage of blockchain largely falls afoul of the GDPR, and we have taken articles 15, 16, and 17 to illustrate some of the issues arising.

Article 15 provides various rights including the right to complain to a supervisory body, which in the context of a decentralised open-source database is not possible. Article 16, the right to rectification, cannot be facilitated on an indelible and unalterable ledger. Finally, Article 17, colloquially known as the right to be forgotten, is also impossible for the same technological reasons.

These issues need to be addressed by regulation or new legislative regimes, as the law that exists today is not fit for data protection purposes when it collides with blockchain. Open-source blockchain which NFTs exist within might become an unstoppable force against the immovable object of the GDPR.

Regulation

In its own efforts to explore potential regulation of the technology, the European Parliament has concurred with the above conclusions surrounding regulation of blockchain technology and the Metaverse. In short, they are at a loss.

As part of the research conducted to produce this article, a potential (and admittedly ambitious) regulatory scheme that could be implemented to regulate Metaverse technology is outlined below. The scheme is divided into three concurrent stages based on design responsibility, reasonable foreseeability, and the duties of co-operation and non-repetition.

Design responsibility attributes the duty to ensure that Metaverse technology is only released to market so long as it avoids infringing certain rights and criteria based on a robust set of enshrined rights such as the ECHR. Corporations can develop anything they want but must ensure compliance before public release. Of course, this may stifle innovation, however,

“the impact of these technologies requires a balance between innovation and potential collateral damage.”

Following this, platforms must exercise reasonable foreseeability to prevent harms incurred within, or facilitated by, the Metaverse. However, where harms are not reasonably foreseeable, the duty would not be infringed. Rather, they would be subject to the third and final duties outlined below.

The final stage would establish the duties of co-operation and non-repetition. Metaverse providers have the duty to co-operate with authorities in eliminating any harm and criminal actions that arise due to their technology. Moreover, a duty arises to ensure that the same harm is not repeated in the same fashion. For example, any bugs or loop-holes that are uncovered in the code that facilitate harm (and any related sophisticated work arounds) should be rectified.

The Ugly - Environmental Impact

Finally, there are some environmental concerns that need to be addressed. Technologies such as blockchain, which is underpinned by countless numbers of computers performing an inconceivable number of micro-calculations, have a substantial environmental impact. The Ethereum blockchain alone consumed the same amount of annual terra-watt hours as the state of Israel. With the sheer server power needed to prop up the Metaverse, the technology is guaranteed to be unsustainable. Not to mention the similar or even more shocking amount of stress other technologies already cause the planet, for example, YouTube alone consumes 2.5% of global energy annually.

The environmental impact of blockchain needs to be considered in line with the Paris Agreement which requires signatories to reduce their economy-wide greenhouse gas emissions by at least 68% by 2030 compared to levels in 1990. To have any chance of positively impacting the reduction of emissions, the use and development of technology needs to change.

Thankfully, the creator of Ethereum and influential developers within the Ethereum community want to move to the proof of stake consensus algorithm, away from the energy intensive proof of work model. Although this change has not been fully implemented, it is an ongoing transition across the decentralised network. The project (Ethereum 2.0) is expected to be completed by the middle of next year. This will reduce Ethereum's energy usage by 99.95% while increasing its security and scalability.

The unfortunate reality is that not every blockchain will necessarily make this change of consensus algorithm in order to become more sustainable, and as the wider economy begins to adapt and utilise this technology there needs to be a guiding hand in shaping its development. Several measures could be undertaken by various regulatory authorities in order to ensure that various industries use the technology sustainably, with the most attractive being some form of licensing.

Blockchain technology will become a feature of most businesses in the coming years, and as a result many will feel the need to set up internal, proprietary blockchains to conduct their operations. This article proposes the creation of a licencing board to regulate commercial blockchain usage, with the licence fee scaling dependent on the energy consumption of the blockchain. The only exception being that if a business can run its blockchain on only renewable energy, disconnected from the national grid, then they will be exempt from paying a licence fee. This is to incentivise more sustainable use of the technology and any licence fees would be used by the state to offset the damage done by blockchain via investing in renewable energy infrastructure.

Conclusion

NFTs and the Metaverse represent two technologies with immense potential but to eke out the positive rewards they first need to be regulated. Consumer protection and environmental conservation need to be at the forefront of regulators' minds so that consumers are clear on the rights they receive with NFTs, users’ rights are protected in the metaverse, and natural resources are conserved for future generations. It is only through further technological development and regulation that NFTs and the Metaverse will have a viable future.

Duty of care in sport and head injuries: what rights do athletes have?

By Simona Gesheve, Scott Richardson-Peat and Jamie Perriam.

Simona, Scott and Jamie were law student scholars, participating in the WS Society Summer Scholarship programme during August 2021. This article summarises their research and presentation.

Introduction

In recent years head injuries, and more specifically concussions in sport, have become an issue of significant concern and controversy both legally and scientifically. This is especially true in sports which involve contact, such as rugby, American football, “soccer”, and boxing. The ongoing rugby litigation has brought this issue to the fore once more.

Concussions

The ambit of head injuries is not limited to concussions; however, for the purpose of this article, we will be focusing on concussions. A concussion is a traumatic injury to the brain. The matter gets increasingly serious when considering second impact syndrome and also the long-term cumulative effect of recurrent concussions. Repetition can lead to, among other things, death, dementia, and Alzheimer’s disease.

Key events leading to the need for mitigation

Several unfortunate events have increased our awareness of the effects of concussions and the need to mitigate the risks associated with them. To list a few: the passing of fourteen-year-old Ben Robinson from second impact syndrome whilst playing rugby in 2011; the $1 billion NFL lawsuit brought by former players in 2013 (settled in 2014 for $765 million to be paid over 65 years); the landmark study published in 2019 by Dr Willie Steward at the University of Glasgow finding that former footballers were three-and-a-half times more likely to die with dementia than the public; since 2020, the law has become involved in the matter once again due to several former rugby union players, all of whom were under the age of forty-five, launching a potential negligence action against the Rugby Football Union, Welsh Rugby Union, and World Rugby.

Mitigation steps that have already been taken

Throughout the sporting world, rules have been introduced, adapted, or even re-emphasised to attempt to mitigate risk. For instance, directly, rugby league banned tackles using just shoulders without using arms as this type of tackling created an elevated risk of concussion. Now, in rugby union, if a hit causes significant contact to the head, irrespective of intention, an automatic red card is issued. In football, recommendations that restrict footballers’ ability to only make ten “higher-force” headers per week during training were introduced. Positively, it appears as if most sports have now effected protocols forcing any player who has had a head collusion to undergo a Head Injury Assessment (HIA). Indirect rule changes have similarly been implemented. Rules that, for instance, increase fatigue, e.g. by reducing the number of substitutes, in the hope that they will lead to less impactful collisions.

“Whatever the rule changes may be, direct or indirect, it is important that they are enforced, and that the health of the players is at the forefront of the decision-making. ”

Duty of care: underlying legal principles

For a claim that a duty of care has been breached to be successful, it must be established that, first, a duty of care was owed by the defendant to the pursuer; second, that the defendant breached their duty of care; and third, that, because of the breach by the defendant, the pursuer suffered damage. It has been noted by the courts that this can be an especially difficult determination in relation to sports.

Sporting duties of care and head injuries

A successful claim in negligence must demonstrate that the defendant owed a duty of care breached to the pursuer’s loss. Establishing a novel duty further relies on the famous Caparo factors: foreseeability, proximity and fairness, justice and reasonableness. Where responsibility for athletes’ head safety lies will differ from case to case; multiple parties may simultaneously owe duties that are distinct but not necessarily discrete.

The English Court of Appeal’s decision in Watson v British Boxing Board of Control suggests that a sport’s governing body may owe participants a duty of care if it takes responsibility for setting mandatory minimum safety requirements; athletes are entitled to rely on such a body’s avowed medical expertise. While the High Court of Australia ruled in Agar v Hyde that the then International Rugby Board did not owe a duty of care to amateur rugby union players in relation to updating safety rules, modern World Rugby’s regulatory function arguably makes it one example of a governing body likely to owe elite-level athletes a duty of care in this regard. 

Besides being the primary enforcers of governing bodies’ rules in individual jurisdictions, national sporting associations’ ability to set more stringent safety requirements of their own regarding head injuries may also give rise to a duty of care. As well as ensuring compliance with relevant regulations, these parties could also have a responsibility to adequately inform participants of the risks associated with their sport.

Sports leagues may also set binding rules in relation to head injuries, with similar results. Sports clubs, meanwhile, have a clear duty to ensure employees’ reasonable safety in the context of their work; this can include any person subject to a certain degree of control and not just those paid to play. Health and safety regulations and liability insurance requirements are also relevant.

Vicarious liability for employees’ actions is another important consideration: sports clubs may, for example, be responsible for the negligence of coaches and retained medical staff. Sports doctors owe patients their usual clinical duty of care and must act in an independent manner appropriate to a reasonable and responsible practitioner, bearing in mind the circumstances of any injury and the prevailing medical opinion at the time. This latter is a particularly interesting point, given the evolving understanding of concussion-related injuries. Finally, referees and other athletes have a duty to ensure that the rules of a sport are reasonably adhered to.

Other issues

Even if a duty of care is established in relation to athletes and head injuries, proving that this was breached to the pursuer’s loss is likely to be difficult. While any harm suffered should satisfy the foreseeability test for legal causation, factual causation is another matter: neurological damage may well be the result of multiple concussions sustained across a long athletic career in which multiple parties owed differing duties of care at different points. The circumstances of each case will be peculiar to an individual athlete. Such complexity of causation was a major issue in the NFL litigation and contributes to the likelihood that settlement is also the ultimate outcome of subsequent suits.

Quantifying any loss suffered should be relatively straightforward: injury will include psychiatric as well as physical harm, although athletes are subject to a duty to mitigate. The related defence of volenti non fit iniuria may, however, throw up another significant stumbling block for pursuers. While what athletes could and should have reasonably known at any point will be fact-specific, and while there may be a large information imbalance between participants and governing bodies, some sports arguably involve an obvious risk of long-term brain injury to which an athlete voluntarily accedes. Although an employee cannot consent to the negligence of an employer given the nature of their relationship, and the nature of head injuries raises questions of capacity, this issue is at least relevant to considerations of contributory negligence on the part of an athlete. There may indeed be a public policy interest in sportspeople taking some responsibility for their own welfare.

“While limitational and jurisdictional issues could also arise, the key question is what was (or should have been) known about the risks at any given point – and whether parties’ responses were reasonable.”

NFL & World Rugby: key changes

Still in its early stages, the current UK rugby case has the potential to produce a landmark judicial decision that could change the whole way head injuries are treated in sports, potentially spilling over to other contact and even non-contact sports such as horse racing which can also cause concussive conditions. It remains to be seen whether at the time there was enough information out there to point to the possibility of long-term brain diseases – and whether this was not properly regarded or even ignored, as in the NFL case – but it is important to examine some of the key changes the retired players want to see as they could give us an indication of how the duty of care will alter in the future in order to make the sport a bit safer. A vital step in the right direction is for organisations to finally recognise chronic traumatic encephalopathy (CTE) and related conditions as a real and serious risk of contact sports such as rugby and provide better medical assessments on and off the field.

Towards better medical assessments, treatments, prevention and education

Athletes are often encouraged to “shake it off” and continue playing after risky hits and even when they are pulled up they may only be asked basic questions such as “What day is it?” after which they are allowed to return to the field. This needs to change, both during practice and in competitions, as the symptoms of a concussion are not always the same. The rugby players also want a database to be created where an athlete’s head injuries or trauma can be recorded for future employers in order to minimise exposure. They want contact to be reduced in the game and, finally, more education to be provided to athletes concerning the risks of long-term irreversible brain diseases associated with their sport. This was a significant failing in the NFL case: how could the players provide informed consent if they were not fully aware of the medical impacts of what they were doing?

Suggestions from the wider sports community

Of course, these are only some of the suggestions listed by the retired players. Many of them, however, have been popular with the wider sporting communities for quite a while now. For example, limiting contact: some more extreme ideas of how this could take place include banning tackle and scrum or tiring out the athletes, so they enter such moves with less energy. Another controversial topic is removing heading, which is extremely popular in soccer, with people like former premier league star Ryan Mason having said that it would probably disappear completely within the next ten years.

“However, rule makers and lawyers alike have to always take into consideration the impact changes can make on the nature of sport and the backlash more extreme measures can give rise to within the sporting and fan community. The interests of the players, organisations, fans and sport as a whole have to be consolidated.”

Integrating modern technology and insurance

Better assessment of hits through evolving technology is another solution sports employers need to be aware of – devices exist or are being developed to measure the impact of hits to the head in order to assess the risk an athlete is taking. Many can be attached to headbands or other gear without creating unnecessary clutter and are less invasive on the game. Thorough brain scans with evolving technologies could also be made a compulsory part of periodic health checks similar to other parts of the body such as the heart, including a long-term plan to evaluate even retired athletes for changes of the brain which manifest later but could be caused by their careers. Employers may have to put in place insurance for brain diseases and, if it comes to it, provide hospitalisation and care when symptoms do appear and worsen. The Australian Football League similarly plans to set up a concussion trust fund, a pot of money for the athletes or their loved ones to access in cases of irreversible illness, aiming to somewhat alleviate their struggles.

Conclusion

Continuous developments in the understanding and litigation of head injuries in sports will inevitably bring about changes in what individuals and organisations are required to do in order to care for athletes. Whatever happens in historic cases – including the ongoing rugby litigation – parties could better protect themselves and their athletes in future if they take reasonable steps to move with the times and implement new technologies, take head injuries more seriously, and put in place insurance or trust funds to reflect the very real risk of long-term brain conditions resulting from certain sports.

The Future Legal Implications of Automated Vehicles

By Victoria Hayward, Madeleine Chambers and Fraser Meighan.

Victoria, Madeleine and Fraser were law student scholars, participating in the WS Society Summer Scholarship programme during July and August 2021. This article summarises their research and presentation.

Introduction 

The introduction of autonomous vehicles in the UK has numerous legal implications. Currently, provisions and guidance in the majority of areas are vague, unclear and not fit for purpose. In their first consultation paper, the Scottish Law Commission together with the Law Commission of England and Wales highlighted three key areas which were crucial for the introduction of autonomous vehicles in the UK. Firstly, that the use of autonomous vehicles is lawful. Secondly, that there are appropriate mechanisms and monitoring in place to ensure adequate safety. Finally, to allow for appropriate mechanisms for attributing civil and criminal liability for compensation purposes. Successfully reaching these standards will require significant consideration and review of current legislation and guidance.

The legal implications of ‘self-driving’ vehicles 

The UK Government has indicated that ‘self-driving’ vehicles could be allowed on British roads by the end of 2021. 

Currently, self-driving vehicles are regulated by the Automated and Electric Vehicles Act 2018 (‘the 2018 Act’). The 2018 Act created a new form of civil liability where vehicles are driving themselves. The key provisions for determining whether a vehicle is self-driving are sections 1 and 8 of the 2018 Act. Section 1(1)(a) provides that the Secretary of State must prepare a list of all motor vehicles that are, in the Secretary of State’s opinion, “designed or adapted to be capable, at least in some circumstances or situations, of safely driving themselves”. The crucial word here is “safely”. This is defined in section 8(1)(a) as a vehicle “operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual”.

Why does the definition of ‘self-driving’ matter? The Scottish Law Commission, together with the Law Commission of England and Wales, are working to create a legal framework for automated vehicles in preparation for their future deployment on our roads. Under their provisional proposals, if a vehicle is classified as being capable of safely driving itself and the automated system is engaged, the person in the driving seat will be a ‘user-in-charge’ rather than a driver. This will have important legal consequences. Firstly, the user-in-charge will be permitted to undertake activities which drivers of conventional vehicles are prohibited from doing, such as reading emails or watching a film. Secondly, if there is an accident caused by a self-driving vehicle the insurer would be liable to compensate the victim irrespective of fault by the user-in-charge. Thirdly, the user-in-charge could not be prosecuted for a wide range of criminal offences such as careless or dangerous driving. 

There are a number of issues that must be considered before the responsibilities of drivers change. One of the most significant is which vehicles would be compliant with the 2018 Act’s definition of self-driving. Currently, no vehicle has been listed as an automated vehicle within the meaning of the Act. It therefore remains uncertain which vehicles would be lawful or safe for the purposes of driving, and indeed, for the 2018 Act to apply. 

Similarly, it is imperative that the law is clear about which vehicles do not meet the test of self-driving. Motor vehicles are becoming increasingly technology based, with driving assistance features taking over most of the task of driving. Tesla, along with other vehicle manufacturers such as Uber and Waymo, have developed vehicles that are capable of driving themselves most of the time but still require a driver to monitor the environment and intervene when necessary.

The legislation only requires listed vehicles to be capable of driving themselves in “some circumstances or situations”. This raises important questions which go to the meaning of self-driving. Where do we draw the line on activities that the user-in-charge is allowed to undertake? If the user-in-charge has diverted their attention and relaxed into other activities, can they be relied on to intervene when things go wrong? And if so, when and how should they be called on to take over driving? 

Following a recent consultation on the safe use of ‘Automated Lane Keeping Systems’ (ALKS) on motorways, the UK Government has indicated that vehicles with ALKS technology would meet the test of self-driving. Thatcham Research and the Association of British Insurers have urged caution over defining such systems as self-driving. Matthew Avery, Thatcham Director of Research explained:

The Government’s plan threatens road safety. Motorists could feasibly watch television in their car from early next year because they believe their Automated Lane Keeping System can be completely trusted to do the job of a human driver. But that’s not the reality. The limitations of the technology mean it should be classified as ‘Assisted Driving’ because the driver must be engaged, ready to take over.

It is hoped that clear guidance will be provided in the near future. There are still many unanswered questions following the 2018 Act, but as the UK prepares for the introduction of self-driving vehicles on our roads, these questions are now becoming urgent. 

Civil Liability and the Product Liability Framework 

When considering civil liability in the context of autonomous vehicles, section 2(1) of the 2018 Act creates a new form of liability that arises directly on the insurers. Section 5 allows for the insurer to bring an action against “any other person liable” once they have settled their liabilities in the first instance. At this stage, it is likely to be insurers who wish to bring claims under the Consumer Protection Act 1987 against manufacturers, producers, and suppliers. However, there is uncertainty as to whether the 1987 Act can be relied upon in the context of defective software in automated vehicles, and if so, when? This area is not isolated to autonomous vehicles - the question of whether “over-the-air” software can be deemed a defective product under the 1987 Act affects numerous industries and technologies. 

The term “product” is defined in section 1(2) of the 1987 Act, but it is unclear whether software updates would fall into this definition. In St Albans City and DC v International Computers Ltd [1996], it was held that software must have a physical medium to be considered a product under the Act’s definition. Therefore, software supplied with the original vehicle would be covered, but software updates would not. The complex neural networks would create difficulties when ascertaining which software caused the defect, as it would be crucial to ascertain whether it was original software or a software update. Nevertheless, in UsedSoft GMBH v Oracle International Corporation (C-128/11) it was considered that “the on-line transmission method” could be seen as the functional equivalent of software which has a physical medium in terms of product liability. This would seemingly allow software updates to be covered by the definition of “product”, but this has not been confirmed. The uncertainty in this area creates a legal framework that is unpredictable and that cannot be relied upon by insurers in secondary claims. 

The 1987 Act defines “defect” as such that “the safety of the product is not such as persons are generally entitled to expect”. We then must consider, under the current product liability framework, when software would be deemed defective. When responding to the first consultation paper, the European Commission Group of Experts on Liability and New Technology asked whether “unpredictable deviations in the decision-making path” could be considered a defect in the context of self-learning AI systems, which make decisions based on learned knowledge. Due to this, a decision the system makes today may not be the same decision it makes later.

“Decision-making in this capacity cannot be deemed defective or non-defective. It is more a spectrum of possible decisions that could be made, and although the driver may disagree with the decision that does not mean it is defective.”

Fitting this spectrum of decision-making into the binary categories of defective and non-defective would require the examination of the algorithm behind the decision. This is particularly different given the amount of data retention that would be required to do so. Clearer provisions would improve legal certainty in the area, but equally it may seek to transform this spectrum into a binary model. At this point it is difficult to know what would be more harmful. 

We should consider who would be liable under the 1987 Act, and when this liability would cease. A point of contention is whether these individuals should retain liability for the lifetime of the vehicle. It is inevitable that software ageing occurs over time, and that this ageing can result in flaws in the software. It is unlikely that the purpose of the 1987 Act was to amount to a “lifelong warranty” over software and its general wear and tear. However, clearer guidance is required on how we then establish when liability over of the software ceases. 

It is evident that the current product liability framework lacks legal certainty. A review of the provisions is inevitable. However, whether this review should be of the 1987 Act generally, or specifically for automated vehicle software is unclear. 

Automated Vehicles and Criminal Liability 

There are a number of aspects that must be given due consideration when analysing the potential criminal liabilities of automated vehicles. Firstly, current road traffic legislation in the UK is not equipped to deal with an increase in vehicle automation on our roads. Certainly, the criminal law must be updated to ensure deficiencies and gaps are eradicated. We have already seen examples of the law being revised. In 2017 concerns were raised regarding remote parking and laws prohibiting mobile phone usage whilst driving. Following a review of the legislation, amendments allowed for remote parking in certain circumstances. Nevertheless, there are still many instances where a review of the relevant legislation would create a framework that is fit for purpose.

“Secondly, the concept of a legal ‘safe harbour’ for users-in-charge of automated vehicles must be introduced under the law. Practically speaking, the public would not welcome vehicle automation on our roads if their criminal liability remained the same. ”

It is unlikely that the general public would be inclined to buy or use an automated vehicle if they were held criminally responsible for an accident which was wholly caused by the automated vehicle itself rather than their own error. 

Thirdly, a new system of dealing with infractions caused by automated vehicles must be introduced. This new system of dealing with infractions must aim to improve the operational performance and safety of automated vehicles on our roads. Ultimately, criminal sanctions may not be the most appropriate method of responding to issues presented by automated vehicles. If an automated vehicle was found to have a fault or defect, and the relevant manufacturer faced criminal repercussions that resulted in an economic sanction, the outcome would do little to improve the safety of automated vehicles. As proposed jointly by the Scottish Law Commission and the Law Commission of England and Wales, a regulatory body in charge of the supervision of these cars could be highly functional and effective in its approach. Criminal sanctions carry with them a strong societal stigma, and their proper use allocates blame and punishes prohibited behaviour. If the goal is to make automated vehicles as safe as possible rather than express moral disapprobation for wrongdoing, then regulatory sanctions would be wholly more effective. A system that allowed for the constant review and monitoring of automated vehicles could ensure consistency across the board of all vehicles and aim to prevent serious failings.

As with any emerging area, vehicle automation and its role in society present challenges and change for the law. Understanding the potential implications for criminal liability goes hand in hand with understanding the regulatory and safety aspects of automated vehicles as well as the civil liability framework. 

Conclusion 

An increase in vehicle automation on our roads is a probability that cannot be ignored. With this increasing presence comes new challenges. Such challenges pose real questions and consequences under the law. The legal issues in this article are only a small proportion of what would need to be reviewed before the introduction of these vehicles to the UK market. The UK and Scottish Government, as well as many private organisations, have heavily invested in the research and development of autonomous vehicles. However, significant public and private funding is still required in order to successfully launch autonomous vehicles in the UK. We cannot ignore the possibility that despite the research currently being done in this area, many factors could cause the introduction to be unsuccessful. 

A Lockdown Lawyer: Returning to the Workplace

Affiliate WS Melissa Laurie gives a personal perspective on workplace location post-pandemic.

Walking home after my first day back in the office post-lockdown, soaking in a rare Scottish balmy evening, I felt like I had lost a limb; I had left my laptop in the office. Over the last 18 months, my laptop been no more than 5 steps away from me at any time. On arriving home, “Phantom Ring” set in. I could swear I could hear my phone ring and my email inbox ping without the laptop even being in my flat. It soon subsided and the liberation of a physical separation between office and home swept over me.

This month I finally qualified as a Solicitor. To celebrate and mark the occasion, I decided to return to the office. I knew the rest of my team – the team I have been working with for the last 6 months – would be there and that I would be meeting them in person for the first time.

The night before going in to the office I emptied the contents of my wardrobe to find my old office pass and some work clothes I could still fit into. I was filled with anxiety. While I knew the team had been as welcoming as they could be over email and video call, I had essentially qualified into a team whom I had never met in person. In fact, more of my traineeship had been spent working from the safety of my kitchen than in the office.

After that first day back in the office, once the initial laptop separation anxiety had worn off, I felt more relaxed than I had in a while. I filled this time catching up on LinkedIn, connecting with contacts and reading some articles which have been sitting in my ‘Bookmarks’ tab for months.

“Not only did the separation between home and office open my mind and attention to other activities, which may contribute to longer term development, but my adventure into the office also left me feeling rejuvenated. It was a real morale boost to be face to face with other lawyers and reminded of why I chose my firm in the first place.”

For someone who considers themselves at times a bit of an introvert, it was easy to think I didn’t need the human interaction. I also believed that I worked better from home; able to keep my head down and zone out from any distractions. While I definitely believe productivity and efficiency can be enhanced in a home environment, I also realise now that I was losing out on the benefits of working in a physical office. Although I may not get my to-do-list done as quickly in the short term, I believe being back in a physical office and having that separation between home and work, at least a couple of days a week, is essential for my personal wellbeing. I also believe having the visibility and contact with other lawyers contributes significantly to my development and engagement.

I appreciate that the position on working in the office is dependent on Government guidance, and I understand the guidance to currently be work from home where you can. Covid is still rife, and we should remain vigilant to minimise transmission. Nonetheless, I would encourage everyone to take the opportunity to return to the office where they can.  One huge benefit of being a member of the WS Society is having an office away from the office. If you don’t have the option to go in to a physical office at the moment, the WS can provide that important separation, with the added bonus of being a picturesque place to work. I have also heard anecdotally of more lawyers taking on jobs across the country, however with the intention of working from home in Scotland. This is understandable given the COVID-19 pandemic has shown us that it is possible to work remotely and has removed the limitations traditionally imposed by geographical barriers. In such a scenario, a WS membership allows you access to a great network of lawyers who may be in the same position, as well as a fantastic working space.

Regardless of where your ‘office’ is, I think we can all now truly appreciate the benefits of having a place to go for work, away from home. I don’t think the physical office will be replaced by working from home any time soon, although I am excited to try a hybrid approach to working going forward. I am very fortunate to be with a firm who supports and encourages that flexibility.

Melissa Laurie, Newly Qualified Solicitor in the TMIC team at CMS Cameron McKenna Nabarro Olswang LLP and WS Society Member since 2017.

The Implications of Covid-19 Vaccine Opt-outs in the Workplace

By Gabriella Barnes, Matthew Bruce and Danielle McDonald.

Gabriella, Matthew and Danielle were law student scholars, participating in the WS Society Summer Scholarship programme during July 2021. This article summarises their research and presentation.

Introduction

There are a number of implications for employers whose employees opt-out of the vaccinations for COVID-19. Several legal considerations should be made by employers, including: the duties an employer owes; whether vaccination has been mandated either by the employer themselves or via another channel; the type of undertaking the employer carries out; what an employer can do when it comes to dealing with the non-vaccinated employee; and the knock-on effect on the employee’s individual rights.

Employers’ Perspective

Employers owe a duty of care to both employees and those persons they deal with through their undertaking. During the pandemic, existing risk assessments and standard operating procedures simply had to be updated to mitigate the threat posed the virus. With an increase in the percentage of the population vaccinated against COVID-19, risk assessments should again change to reflect the reduced risk for vaccinated persons. However, this would operate on the assumption that the employees are being vaccinated at the same rates as the population at large.

Currently, vaccines are only given where individuals make an informed decision to consent to uptake. However, there is the possibility that the State or individual employers may mandate vaccination for employees. Employers are able to alter the terms and conditions of employment contracts, even where employees overwhelmingly disagree with proposed changes. Health and safety legislation also allows for employers to change policies in the same way.

Westminster has suggested they may make it a legal requirement for certain employees – namely in care homes – to be vaccinated. This may take pressure off employers as vaccination would no longer be mandated by them. However, no details have been put forward and it may still be for employers to enforce the law.  Holyrood has not been forthcoming in this respect. 

A vaccine mandate may come not from employers or Parliament, but from statutory bodies. The General Medical Council already recommends all doctors be vaccinated against transmissible diseases. Although not part of the employment contract, Stevens v University of Birmingham held that a breach of GMC guidance could be taken as a disciplinary procedure by the employer.

“The importance placed on vaccination will differ greatly depending on the undertaking of the employer.”

The Public Services Reform (Scotland) Act 2010 stipulates that care homes themselves must be registered instead of employees. They may, therefore, be more willing to push for disciplinary procedures to enforce vaccination to protect themselves from any future complaints. Where an employee opts out, they will no doubt be viewed as an increased risk in the workplace. Problems may arise where the risk becomes too great for an employer to reasonably accept, or potentially have them sanctioned by their professional body. The question, then, is whether opting out can be successfully dealt with as a disciplinary matter.

Employers may be able to rely on the flexibility of case law that is read alongside the potentially fair statutory reasons for dismissal. Certain employers may be able to rely on the approach Tribunals must follow, set out in Iceland Frozen Foods Ltd v Jones. A large employer, such as the NHS or Asda, may be able to easily redeploy unvaccinated staff to roles where transmission risk is much lower. Whereas dismissal may be the only practical option available to a small independent care home, that may be at risk of losing registration or custom due unvaccinated employees.

Another option available to employers, particularly in the health sector, is exclusion as detailed in Al-Mishlab v Milton Keynes Hospital NHS Trust, which concerned a surgeon whose work fell below expected professional standards. It may be possible for exclusion may be able to remove the unvaccinated employee from the role in which problems may arise. The Court did state, however, that exclusion could not be for an extended period and the employee must be returned to their full potential after the appropriate investigations have taken place. Importantly the Court emphasised that patient safety prevails over an employee’s personal rights against the employer and was not willing to order an obligation of work while patient safety was still in the balance.        

Employees’ Perspectives

One of the significant issues is how a potential mandatory vaccine and opt-out procedure would affect an employee. A number of issues arise in respect of human rights, patient autonomy and the effect on the rights of other employees in the workplace. Any interference with human rights during the pandemic has been justified by the wider concern for public health.  However, a mandatory COVID-19 vaccination requirement in the workplace strays into the territory of medical ethics and patient autonomy.

There is a great deal of protection afforded to employees under the Equality Act 2010.  This is where exceptions to mandatory vaccinations would have to be considered. The protected characteristics, such as disability, would be a consideration.

“ It is entirely possible that an individual with a particular disability could be advised by their doctor not to have the COVID-19 vaccine, due to the risk of side effects. Such medical advice to the individual would have to be accepted by the employer but the employee is not obliged to disclose such information.”

This would be classed as special category data under the General Data Protection Regulation and employers need to be careful where they tread with this. A problem could arise where the policy states that the employee must give a reasonable excuse for opting out, but that reasonable excuse happens to be a medical one which the employee has a right not to disclose.

Religion could be another potential reason when it comes to opting out. In the European Court of Human Rights case of Eweida v United Kingdom, an individual’s right to manifest their religion in the workplace is protected, despite what the employer’s policy might dictate.  However, from a different perspective, it is interesting to note the decision in the related case of Ladele and McFarlane v United Kingdom, where a registrar refused to deal with same-sex marriages.  It was held that the employee’s right to have her religious views respected, did not outweigh the duty of the employer to manifest equal respect for both heterosexual and homosexual couples.  Perhaps this could be applied in the vaccine context. The duty to protect the public health could potentially outweigh the individual’s right to respect for their religion or belief.

There has been much debate on the definition of belief in this context; the only definition in the Act being that belief means any religious or philosophical belief. Through the evolution of case law, certain criteria have emerged which expand on the definition. These are relatively broad, and it has been found that beliefs such as humanism, pacifism and vegetarianism are protected beliefs. It is worth considering the possibility that the belief that vaccines cause harm could be protected.

People who change their religion or belief are still afforded legal protection under the Human Rights Act and Article 9 of the European Convention.  Practically then, this means that an employee should not have to prove that they have held this belief for a specified period of time prior to the opting out.  This could present another problem however, as it seems that this leaves the belief aspect open to exploitation by employees. The ethical implications of an opt-out procedure cannot be overstated. 

“From a medical ethics perspective, this is no different to refusal of medical treatment; and patient autonomy, by definition, means that an individual has the right to choose whether they consent to treatment, without giving a reason and without undue influence.”

It is apparent that the individual’s rights in the workplace are at the forefront of the debate.  However, the rights of the wider workforce are equally important. There could be a situation where an individual in the workplace is particularly vulnerable to the effects of COVID-19 and an unvaccinated employee could pose a real risk to their health. It could amount to discrimination to expect the vulnerable employee to make adjustments such as working from home, based on another person’s choice not to have a vaccine.

There is a serious question of how to weigh up the rights of one employee with those of another. Allowing employees to have freedom of choice to opt-out appears to be an amicable solution, but with this freedom, comes risk to the employer and to other employees.  The conflict arising seems to beg the question of whether the Human Rights Act and the Equality Act are still fit for purpose.   

Practical Implications

A possible tactic employers could use to increase vaccinations are incentives. This has been used in New York where you can be entered into a raffle for free state university education, Beijing with free eggs, and India with free gold nose pins. Employers will need to be careful when using incentives due to ethical and human rights concerns. People who would not normally have taken the vaccine due to their own beliefs but would with an incentive due to their financial situation, especially in comparison to those who are wealthier. Another incentive could be through sick pay. ACAS has suggested for there to be an enhanced rate for those who have taken the vaccine and who have side effects. There are also concerns for a type of reverse incentive as France is set to restrict access to businesses and certain public spaces to those recently testing negative or who are fully vaccinated. There is a fine line between an incentive, what can be considered a bribe, or even a punishment.

There is case law dealing with vaccine opt outs, however they involve children and there is nothing to compare with mandatory vaccination schemes for adults. Vavřička and others v The Czech Republic discussed a possible breach of Article 8’s right to private life as the parents did not vaccinate their children and as a result, were fined and the children were not able to attend preschool. Article 8 is a qualified right so it can be infringed. There was also a possible breach of Article 9 protecting their beliefs, however the court did not rule this applicable as the applicant did not meet the standard of sufficient “cogency, seriousness, cohesion and importance”. In the UK, an English appeal case discussed in obiter that it would be difficult to justify not giving the COVID-19 vaccination to children due to the principle of child’s best interests. Although not binding, it is a good indication of possible future judicial thinking.

An English Court of Protection case, SSV v Richmond upon Thames, concerned an adult who lacked capacity due to dementia and refused to take the COVID-19 vaccine. This was consistent with her previous refusal of vaccines when she did have capacity. It was ruled not be in her best interest to force the vaccine due to broader implications of harm to her welfare living in the care home that forced it.

As it is already mandatory for doctors and nurses registered in Scotland to be vaccinated against Hep B, meningitis and MMR, a similar policy for the COVID-19 vaccination could feasibly be put in place for that sector. It is difficult to envision other industries doing the same as they do not have that precedent. Those employed in the medical field have knowledge that they have to be vaccinated before entering into employment. For other industries there are concerns of possible knock-on effects of people not wanting to enter an industry with a mandatory COVID-19 vaccine.

Conclusion

It is clear that there is no simple answer to the legal questions posed. Although public health is important, especially in the times we find ourselves, this must be balanced with individuals’ rights and freedoms. If a very hard line is taken, the implications could damage the fundamental relationships at the heart of employment law.

Certain industries will be better placed to introduce and handle vaccinations in the workplace. However, any changes ought to be brought in after discussion and cooperation between employers and employees. Current risk assessments should first be considered, and only then, necessary changes brought in instead of blanket mandates. Given the pandemic and its effects seem set to stay for a while longer, legal development in this area is needed to provide clarity going forward.

The Roberton Review and the Future of Legal Regulation in Scotland

By Faisal Shafaq, Charlene Tannock and Diana Stocia.

Faisal, Charlene and Diana were law student scholars, participating in the WS Society Summer Scholarship programme during August 2020. This article summarises their research and presentation.

Introduction

The regulatory framework of legal services in Scotland is considered by many as overly complex.  Many have argued for reform, especially given a rise in the number of client complaints against the work undertaken by their solicitors. The Law Society of Scotland (“LSS”) initially prompted the Scottish Government to review the current regulatory framework and recommend improvements.

The Roberton Review (“the Review”) was established in 2017 by the former Minister for Community Safety and Legal Affairs, Annabelle Ewing. Esther Roberton, Chair of NHS 24 was tasked with undertaking the independent review. Ms. Roberton’s remit was to scrutinise the current regulatory framework of legal services and make recommendations to reform and modernise the system to better serve the public, the profession and the Scottish economy.

“Over an extensive period of time, there have been consistent indications that consumer complaints are on the rise, the major issue being the manner in which complaints are handled. ”

Processing of complaints is often slow and the system criticised as being cumbersome and difficult to navigate. It has been frequently said that the current complaints system is not fit for purpose, as regulation has not been kept up to date with the current landscape of the legal services sector.

The Current Regulatory Framework

The solicitor’s profession is made up of approximately 12,000 practitioners, which constitutes a relatively small professional pool, when considered within a populace of five million in Scotland. The Review considered what basic principles were required to provide an efficient regulation and consumer principled framework. Ensuring legal services are properly regulated is essential to maintaining; an effective rule of law; an efficient administration of justice in Scotland; and upholding public confidence. With public interest weighing heavily on the agenda of the Review, it was vital to consider whether the current system of five different organisational regulators was fit for purpose. The three significant regulators are: The LSS, the Faculty of Advocates (both of which have a representative professional body role, as well as a regulatory role) and the Scottish Legal Complaints Commission (“SLCC”).

The LSS’s role as a regulator is primarily to govern the conduct of legal practitioners, whilst enforcing standards for entry routes to the profession, accreditation of the educational institutions, and supervision of other financial provisions, such as: anti-money laundering; the client protection fund; and ensuring legal firms are fit for purpose.

“The LSS is responsible for both the regulation and representation of solicitors, which suggests that the waters should be somewhat clearer between the two roles.”

The LSS has championed a procedural reform, challenging the framework set by the Solicitors (Scotland) Act 1980 and current models for dealing with complaints. 

The SLCC oversees all complaints concerning the legal services. In its current structure, it is heavily burdened, to such an extent that it struggles with current demand from both the legal providers and consumers. The timeframe to process complaints can some instances be in the excess of 4 years. In some cases, it can even take up to 22 weeks to have the initial complaint classified. For concerned parties that can be a very frustrating and stressful waiting period which the Review has highlighted. 

The Consultation Process

The LSS opposed a single regulatory body, as it would crucially increase costs for consumers and thus weaken public protection. It was agreed that the complaints system is cumbersome and confusing at present, but not without hope for redress.

The Scottish Law Agent Society (“SLAS”) was also against a single regulatory body, as they stated the idea ‘lacks credibility’ and that additionally there appears to be no evidence of this being a consumer preference. This is coupled with a concerning disregard for the rule of law, with a regulatory body potentially leading to an unreserved and problematic concentration of power in one body.

The SLCC was a supporter of the Review, arguing that there has been a widespread and long-lasting failure to challenge whether five separate bodies are effectively needed. The Review proposes to abolish those five legal bodies, which comprise the SLCC itself.

Key Recommendations

The Review made 40 recommendations with the aim of providing a proportionate approach to regulation whilst supporting growth and competitive provision within the sector and placing consumer interests at its heart. The most notable recommendations are detailed below:

• The primary recommendation is for a new regulatory model and single independent legal regulator in the legal services.

• The second key recommendation is that there should be a statutory provision which requires the legal regulator to implement an efficient complaint handling process for the consumer to raise any concerns which they may have against a solicitor or advocate.

• The third key recommendation is to introduce regulation of the term ‘lawyer’, as there is public misperception about the differences between the terms: solicitor and lawyer. It is crucial for the term ‘lawyer’ to be regulated as anybody can call themselves a lawyer without formal accreditation. However, if one represents himself as a solicitor, then they must have a practicing certificate from the LSS, failing which they would be incurring criminal sanctions.

Implications of the Roberton Review

“Would an autonomous regulator, entirely independent of those it regulates and governmental influence work in practice?”

The Review recommends that a single independent regulator would govern everything from entry to the profession, to practitioners’ conduct, and the totality of complaints. It is conceived as a “one-stop-shop” to simplify a complex legislative and complaints framework and would be designed to be proportionate and risk-based. 

Should the Review have instead looked to improve current infrastructure within regulators, instead of wiping the model clean and starting from scratch? The Faculty of Advocates and the LSS are extremely troubled with the prospect of losing their regulatory power. They are concerned that the model recommended would give government a stronger hand in governance of legal services and challenge independence. This is despite the Review stating that the new regulator would be accountable to the Scottish Parliament, rather than the executive. The ability to act independently and represent clients without fear or favour is an integral aspect of both branches of the legal profession.

Legal Services – The Landscape of Business Structures

The Scottish legal market is presently worth £1.2 billion, generating more than 20,000 jobs. Despite political upheaval, the still felt aftermath of the financial crash, and the COVID-19 crisis, the Scottish market has proved resilient, with no significant market failures being registered. However, essential differences exist with its English and Welsh counterparts in terms of regulation. When assessing the need for regulatory reform in Scotland several variables must be considered: the very nature of the legal profession and its societal significance; the economic fabric in which legal services exist; and the manner in which services are being delivered.

As highlighted in the Review the legal profession at large is concerned about the quality and ethical value of the services it provides.  Regulatory protection of the very term ‘lawyer’ is widely desired in light of the particular societal role and higher standards the profession is held to. More widely than the regulation of lawyers themselves and their conduct, the business structures in which they operate look set for change.

“The branches of the Scottish legal profession are centuries-old, characterised by distinctive culture, prestige, an exceptionally high-level service provision and a strong institutionalised presence.”

 The solicitor’s profession is dominated by the traditional law partnership model and this has remained unaltered for decades. Globalisation has impacted the Scottish market through numerous English and international mergers and acquisitions, but the dominance of the current partnership model persists. Currently, the profession stands at a crossroads, with the provision of legal services shifting towards a more commercialised and outward looking practice, featuring business efficacy as its main drive. Is the landscape of business structures changing and should the Review have taken this into account?

Alternative Business Structures

The introduction of Alternative Business Structures (“ABSs”) in England and Wales, via the Legal Services Act 2007, has sparked much debate. The traditional LLP only allows registered lawyers to legally own shares of the firm. In this pyramidal model, the partnership will benefit from all revenue exceeding the coverage of the firm overall business costs. ABSs allow non-lawyer ownership, effectively opening the gates for multi-disciplinary practice, where lawyers interact with other business providers, consultants and advisors. In this model there is no longer a monopoly of the delivery of legal services, tied solely to registered lawyers. The role of General Counsel has become crucial, with the Big 4 Accountancy firms aggressively expanding their legal teams, seeking to establish a firmer position in the progressively more valuable legal market.  It is believed that the billable fee structure associated with the partnership model may be pushed towards a system of predictive fixed fees with the introduction of ABSs and evolving client demand.

However, the progression of the Legal Services (Scotland) Act 2010, allowing for the introduction of ABSs, has stalled since 2017, and would nevertheless require a 51% minimum ownership by lawyers to proceed. This has been received not without criticism by some practitioners, notably the Scottish Law Agents Society, who claim the inability to operate ABSs is hindering an effective delivery of legal services. Arguing ABSs enhance client experience, and allow for more price transparency, better investment, and strategic allocation of resources.

Final Remarks

Overall, regulation allowing for a more flexible multi-service delivery approach is welcomed by many. But particular attention should remain on the invaluable ethical standards the profession abides by and the quality of service provided.  The Review provides significant recommendations for change to the framework in which the profession operates. Not all of the recommendations are supported by both branches of the profession and responses to the Review have highlighted that the across the sector the ability to operate independently is of crucial importance. The regulatory framework of legal services in Scotland looks set to change, as well as business structure in the industry but the debate as to what the future will look like seems set to continue. It is hoped that continued engagement will see the legal profession attain the contemporary, proportionate, and effective regulatory framework it deserves.

Scottish Wildlife Legislation: a bunny hop in the right direction?

By Damian Hoggan-Radu, Eilidh Gunn and Samantha Sloan.

Damian, Eilidh and Samantha were law student scholars, participating in the WS Society Summer Scholarship programme during August 2020. This article summarises their research and presentation

Introduction

The United Kingdom’s concern for animal welfare has a long and complex history reflected by the progressively slow evolution of legislation. It has been considered that animal welfare law is based on ‘moral a priori assumptions’, such that animal welfare issues are strongly influenced by context, cultural and social values and a society’s moral understanding of the matter. As public opinion on animal health and welfare develops the issue has been pushed into the limelight of the public domain.

“The Animal and Wildlife (Penalties, Protection and Powers) (Scotland) Act 2020 (“2020 Act”) is an advancement of the protection granted to animals brought about by the increasing concerns raised by animal welfare charities and society in light of the continued occurrence of animal and wildlife offences.”

Before the 2020 Act, a few animal cruelty cases highlighted this growing social and political interest in animal welfare, however, the legal sanctions available to the courts at the time were felt to have been inadequate. The 2020 Act amends a lot of the 2006 Act in relation to fixed penalties, protective measures and taking possession of animals. It also amends various wildlife legislation. The 2020 Act was introduced, with two purposes:

1.       To make provisions for existing animal and wildlife offences, including how these are dealt with, prosecuted or considered in courts; and

2.       To provide authorised persons additional powers to deal with an animal taken into possession on welfare grounds, regardless of whether an offence has taken place.

Wild Animal Welfare

Scotland is known worldwide for its green landscapes and wildlife and wild animals are a key component to enriching this diverse ecosystem. Due to the very nature of wild animals these species have previously been considered as a part of wildlife not under ‘direct’ human control, thus taking away from the fact that they are sentient creatures which should be protected from cruel and inhumane treatment, just as domesticated and captive animals are protected from by law.

For centuries farmers and estate owners have adopted mitigation methods that were justified for wildlife management purposes and the welfare of wild animals was not of principal concern. As a result, wild animal welfare law has fortuitously evolved from conservation and wildlife legislation such as the Wildlife and Countryside Act 1981. Although wild species’ welfare is not comprehensively protected under such statutes, provisions are in place to address wild animal welfare issues. For example, section 9(1) of the 1981 Act makes it an offence to intentionally kill, injure or take any wild animal protected under Schedule 5 of the Act. Additionally, section 11(1)(a) imposes a ban on the use of self-locking snares, and so taking into account animal welfare given the unimaginable suffering that asphyxiation could cause a target or non-target species. Furthermore, section 13(3) of the Wildlife and Natural Environment (Scotland) Act 2011 amends the 1981 Act, imposing a duty on snare operators to inspect it ‘at least once every day at intervals of no more than 24 hours’ to further the protection of wild animal welfare.

New Penalties

The 2020 Act primarily focuses on amending 6 pieces of legislation to increase the penalties applicable to wildlife offences (ss 7-13). The severity of wildlife offences will now be reflected in the severity of the penalties. Fines for particular offences have increased from level 4 or 5 on the standard scale to £40,000 and imprisonment periods have increased from six months to twelve months, or up to five years for the most serious wildlife crimes.

Such penalties aim to create a sentencing deterrent for possible perpetrators of wildlife offences. Whilst this is a possibility - as the Act is not fully enforced it is yet - it to be determined whether this increase in penalties will reduce wildlife crimes in practice. We agree with the Law Society of Scotland that there is an urgent need to introduce sentencing guidelines to evaluate culpability and improve society’s understanding of the disposition of wildlife offences in order for the Act to be effective as a deterrent. It is disheartening to know that sentencing guidelines are unlikely to be created prior to the end of the business period in 2021.

Protection of Species and Licensing

The Beaver and the Hare

The 2020 Act aims to increase protection for wild animals from indiscriminate injury or death. A notable improvement for protection granted to terrestrial animals is the inclusion of mountain hares to the list of protected species under Schedule 5 of the 1981 Act pursuant to section 18(3) of the 2020 Act. This provision has been commended by OneKind as a ‘triumph’ to address the indiscriminate killing of this species which has previously resulted in the death of 26,000 mountain hares a year in Scotland.

“There is no doubt that this protection is a step in the right direction for the welfare of mountain hares by reducing wildlife management mitigation methods to those permitted by licence.

However, a licence to kill is still just as deadly for an animal even if permitted by law.”

This raises the question as to whether a provision allowing a licence to kill can truly be in favour of individual wild animal welfare.

In 2019, beavers received status as a European Protected Species of Animals and are protected by Scottish Law. Shooting such animals is only permitted by a licence granted by NatureScot. However, in this same year it was recorded that a fifth of the beaver population were shot under licence.

The 2020 Act may bring an end to indiscriminate killing of mountain hares, but it is to be determined if this further protection paired with more serious penalties for wildlife offences will ensure that a licence to kill will be conducted with the welfare of the animal in mind. We urge further discussions on introducing further preventive measures to protect wild animals’ welfare.

Seals

The 2020 Act intend to further protect terrestrial animals and other marine life. Section 14(2)(a) of the 2020 Act repeals s110(1)(f) and (g) of the Marine (Scotland) Act 2010 in order to reduce the purposes which would allow for a seal to be killed under licence. This provision removes the justification to protect the health and welfare of farmed fish and the need to prevent serious damage to fisheries or fish farms - in most circumstances seal shooting occurs on fish farms. It was also introduced to satisfy the US Marine Mammal Protection Act requisite that no fish could be imported from Scotland unless the welfare of marine species is protected.

OneKind has voiced concerns that the continuation of licences for the repealed purposes until 31 January 2021 could contribute to an increase in seal shooting over the next few months. This is particularly concerning given the upward trend of seal killings in 2020 compared to last year. Libby Anderson has stated that an aim of OneKind is to ensure that a ban on seal killing becomes ‘permanent, comprehensive and watertight’ in a provision and the 2020 Act does not introduce such a measure.

Farm Animal Welfare

Two recent cases, read in light of the new provisions, can illustrate the improvements under the 2020 Act for farm animals in Scotland.

In the first case, East Lothian Council v Martin ([2015] CSIH 13), the owner of a herd of pigs and a flock of hens left their animals unattended. The local council then took the pigs and hens into their care and sought permission from the court to sell the animals. The owner opposed the order and the case went up to the Court of Session, dragging on for almost a year, while the cost of accommodation to the local council was racking up. Parliament held discussions about striking the right balance between the right to private property and the need to protect animals. The 2020 Act strikes a good balance as they reduce costs by allowing the authorised persons to take action sooner.

The second case, McLeod v Noble (2018 S.L.T. (Sh Ct) 227), a pony was stabled in the living room of the owner for two years, before being removed into the care of a local riding school, at the expense of the local council. This amounted to over £5000. Under the 2020 Act, again, the cost of keeping the animal in temporary accommodation, while waiting for a court decision, would be significantly reduced. What is interesting about this case is the test used by the court to determine if possession of the animal should be given to an authorised person. The possibility that the animal would suffer and inappropriateness of the living conditions, were sufficient to transfer possession. The court acknowledged that the owner cared deeply for the pony and did her best to look after it, however, the welfare of the animal came foremost.

It has been suggested that 2020 Act does not go farm enough in protection of farm animals. In the cattle industry, many farms are adopting the ‘zero graze’ practice, which means that cattle are kept indoors all year around, causing significant health problems for the animals. Chickens face similar problems. Around half of the hens in the UK are kept in ‘enriched cages’, while breeding methods cause painful leg disorders, heart, and lung problems. In the pig industry, farrowing crates inflict pain and are used for approximately 60% of the sows in the UK.

As a priority solution, systemic change is recommended, which can be achieved by either market influence or through legal change. Market influence, in the form of consumer pressure can incentivise farmers to adopt new, more humane practices. However, rather than relying on market influence, change could be achieved through legislation. If we want to prevent the movement of cattle from pastures to year-round indoor grazing, campaigning for legal change, is more likely to be effective than relying on the market influence of consumers.

Considering these structural problems with farming, it is clear there are failings in the 2020 Act. While the UK, as a whole, is doing well at protecting animals in captivity and companion animals, compared to other countries it has been ranked low in relation to the protection of animals used in farming.

Animal’s Used for Testing Welfare

When considering what the 2020 Act does for improving animal welfare it is useful to make a comparison between how we protect the three significant categories of wild, domestic and farm animals but have no such regard for animals used in scientific testing – which is another short falling of the Act.

While animal welfare is a devolved issue, there is no Scottish provision for governing the welfare of animals used for testing. This is devolved, under the Animals in Scientific Procedures Act 1986 and the adoption of the 3Rs principle. The authors believe there is a disparity between the ways in which domestic animals are treated against lab animals.

A case heard in 2015, concerned a man who was charged with two separate offences under the 2006 Act for both negligence and abuse of animals in his care. The accused bred rats and mice to feed to his reptiles and at worst had over 130 rodents at one time. Being kept in poor conditions left many of the animals deformed and paralysed and the rodents had to be euthanised to prevent any further suffering. The Defendant in this case was prosecuted for breeding rodents and keeping them in a way which compromised their welfare. While the 2020 Act provides provision to fine and sentence this sort of animal cruelty, we see similar activities carried out every day in Scottish laboratories where rats and mice are bred and often ending up paralysed and deformed like the animals in the Riddle case.

While scientists and supporters of animal testing may argue that a rat or mouse in a lab does not suffer the way Riddle made those in his care suffer, the statistics show that only 11% of vermin used in scientific testing suffer sub-threshold pain, thus suggesting 89% experienced suffering ranging from moderate to severe to non-recovery. This begs the question, why does the value of an animal change dependent on whether they are a domestic pet or a laboratory animal? As famously stated by Webster in 1994, a rat is a rat whether we define it as vermin or as a pet.

Many may be are under the belief that Scotland is not so much involved in the world of animal testing. However, the author’s found it surprising that Edinburgh University has for many years topped the charts for being the facility to test the most animals per year in the UK: In 2018 averaging testing on 660 animals per day.

Animal testing is more relevant than ever due to the urgent need for a COVID-19 vaccine.

The way in which scientists have dealt with vaccine testing in relation to COVID-19 has broken the significant liner pattern. A traditional full safety vaccine testing package would have included 2 years’ worth of animal testing in order to produce a product safe to test of humans. However, the urgency of the development of a COVID-19 vaccine has led to a number of trials have opted to test on both humans and animals at the same time.

A trial conducted in Oxford bypassed the traditional way of testing on animals entirely and went straight onto human trials. Prioritising human first approaches in the search for a COVID-19 vaccine sets a powerful precedent that will hopefully lead to alternative methods being used over the historically preferred animal testing; An idea that is not radical considering the growing developments in stem cell, silico models and other alternatives.

Final Remarks

Rural Affairs Minister Mairi Gougeon has stated that 'this [Act] is an important milestone in Scotland’s long tradition of protecting our animals and wildlife' and the Scottish SPCA has considered the Act as a 'momentous' decision of the Scottish Parliament to revolutionise animal welfare.  However, one omission from the 2020 Act is the idea of animal sentience e.g. that animals have the ability to feel, perceive or experience subjectively. This is inferred in the 2020 Act but not explicitly outlined. This is surprising considering it was one of the most noticeable omissions from the Animal Welfare Act 2006, for which it was noticeably criticised.

Reform should not stop with the 2020 Act and the failings in the Act should encourage the Scottish government to review the situation again. We look forward to seeing the advancements the Act will hopefully make for animal welfare when it is fully in force.

JAMES H. RUST W.S.

Everyone at the WS Society is deeply saddened by the death of our Clerk, James Rust, on 10 August. Former Deputy Keeper of the Signet Caroline Docherty OBE WS leads a tribute to James on behalf of the Society.

The news of the death of James Rust, the Society’s Clerk, on 10 August, after a short illness, has come as a shock to all of his friends and colleagues within the WS Society. I know that all fellow WS, and others associated with the Society join with me in sending their deepest condolences to Janet, Josephine and Callum, and his wider family.

James’ service to the Society was unique, in that he not only held two important roles, but did so concurrently - as he served as Collector of the WS Dependents’ Annuity Fund from 2004 to 2014 and as Clerk from 2008.

Being close contemporaries, I followed just behind James throughout our careers. From Aberdeen University to training in Edinburgh, achieving partnership, admission as a Writer to the Signet (in James’ case in 1985), membership of one of the Society’s dining clubs – The 1977 Club, to serving as office bearers together, and ultimately as Deputy Keeper and Clerk/Collector at the same time. James was quite literally by my side throughout our deepening association with the Society. He spent his whole professional life with the firm of Morton Fraser, and when I joined as a consultant in 2010 I was delighted that one of the accidental benefits was that James and I became colleagues, and he involved me in the business of many of his clients. In one relationship I was “boss”, in the other he was. It was perfect. As, quite simply, James was a delight to work with, in whatever capacity you encountered him. Over recent weeks I have spoken to clients, partners, junior colleagues, solicitors who encountered him in transactions, fellow office bearers, contacts from other organisations with which James was associated, and they have all said the same things. He was charming, unfailingly courteous, considerate, kind, loyal, supportive, generous and great fun. A true gentleman, in all of the best senses of that word.

In his roles with the WS Society James was often the measured and cautious voice round the table, but when he was satisfied on a matter, he was an enthusiastic and encouraging supporter. His kindness was often displayed when he would take time to mull things over after a difficult meeting. He enjoyed meeting new members, including students, at the admission ceremonies twice a year. In his role as Clerk he was the first to shake their hands to congratulate them as they signed the Roll, and would always take time to chat with everyone in the room, along with their families, after the formalities were completed. He was a stalwart of the annual dinner, always happy to say grace, and host a table of the Society’s guests. It was in this role, though, that he performed one of the functions that I appreciated most. His position on that “top” table meant that when I was speaking I could see him out of the corner of my eye, smiling, and his laugh was always one of the first, and most recognisable, that I heard. He was always one of the first to come over as the evening wound down, and we would enjoy a chat and debrief later in the evening. All of these WS duties, James performed while not only managing his hugely demanding practice as an agricultural law specialist, but while holding numerous other roles – with the Consular Corps in Edinburgh, and as a session clerk for example. No surprise then, that he occasionally arrived in the Commissioners’ Room with seconds to spare, describing himself as “hauden doon” – before quickly getting his papers out of his vintage, well-worn briefcase.

When news of James’ death broke, a socially distanced gathering of his colleagues in the Meadows was immediately organised. There was a desire to spend time that afternoon remembering him and talking about him. And of course, we spoke about his humour, and indeed some of the jokes we made at his expense. He tried to look grumpy, but he always took teasing in good part. Where did he get his very “traditional” sports gear? Was it true that he would accept an invitation to the opening of an envelope? And how could he enjoy salt and vinegar peanuts?

Over recent years Council of the Society and the management group have spent a lot of time in thinking about what it means to be a Writer to the Signet. Excellence in legal practice, an interest in things outside the law, a desire to use one’s talents to help others, especially through charitable organisations, someone who is respected in his community as having integrity and a person who embraces the opportunity to enjoy and learn from the company and society of his fellow lawyers. Oh – and in these modern times, that has all to be done in an “unstuffy” way. A tall order perhaps. But I have just described our dear friend and colleague James Rust. As we had discussions round the table, the perfect example was sitting with us.

We will remember him with the greatest affection and miss him sorely.

Caroline Docherty OBE WS
Former Deputy Keeper of the Signet

I join Caroline in paying tribute to James and I share in the sadness and shock we are all still feeling as we come to terms with losing James as both a friend and colleague. James was so closely associated with the Society and for so long that his absence will be felt keenly for a long time to come. We held him in the highest esteem as unfailingly courteous, good humoured and considered in his approach. Whether undertaking his duties as Clerk at our diets of admission, saying grace at the annual dinner or attending Society meetings, James was a model of calm and composure. He was an immense source of support and counsel to me when I took office as Deputy Keeper. I will never forget his kindness and friendship.

Mandy Laurie WS
Deputy Keeper of the Signet

The whole of the executive at the WS Society was shocked and saddened at the death of James Rust WS. It was typical of James that even in his last days he remained interested in the affairs of the Society. We will remember him as unfailingly courteous, thoughtful and humorous. We regarded him as a stalwart of the Society and we will miss him very much. I was admitted as a WS at the same diet as James and it will be as Clerk, welcoming new WS at admission ceremonies, that I shall always remember him. James was a reassuring and calm presence at Society meetings and a great representative of the Society at the annual dinner and other events in the calendar. Our loss is as nothing compared to James’s family to whom we extend our deepest condolences.

Robert Pirrie WS
Chief Executive, The WS Society

Virtual courts - here to stay?

By Zainab Muzaffar, Katie Yule and Zoe Nugent

Zainab, Katie and Zoe were law student scholars, participating in the WS Society Summer Scholarship programme during August 2020. This article summarises their research and presentation.

Introduction

“We are confident there is room to be proud of Scottish legal traditions whilst embracing the opportunities that new technologies will provide. ”

The question of the viability of virtual courts is a vast topic which is developing on a daily basis and attracts polarising opinion. Our research considered the impact of lockdown on criminal and civil proceedings in Scotland and how other jurisdictions have adjusted to the use of virtual courts. We were delighted to be able to conduct this research in the Signet Library, a 200-year old building steeped in history and legal tradition.

For some, virtual courts are a threat to Scotland’s legal heritage as we potentially move from courtrooms to laptops. We do not share this sentiment.

Civil

The first virtual hearing to be held in Scotland was heard in the Inner House of the Court of Session on 21 April 2020 before three judges, Lord President, Lord Carloway, Lord Menzies and Lord Brodie.  The first virtual hearing in a Sheriff Court was heard before Sheriff Principal Derek Pyle at Inverness Sheriff Court on 12 May 2020.   Following the initial suspension of all but essential business, activity in the courts has gradually started to pick up.  Procedural hearings have been conducted via telephone or video link in the Sheriff Courts and ASPIC.  Debates have been conducted by video link and the first virtual proof in the ASPIC took place at the beginning of August.

The changes to the conduct of civil business in the Scottish Courts has been introduced rapidly in response to the COVID-19 crisis.  In a statement published on 19 June 2020, the Lord President acknowledged the speed at which the changes had been implemented and advocated for the adoption of virtual courts permanently “This is not the time for a defence of tradition.  The cry of “it’s ay been” cannot prevail.  We have to seize the momentum and opportunity to respond to the particular challenge.”  These sentiments have been echoed by other members of the legal profession and there has been some consensus among court practitioners that virtual courts should remain in place going forward.  There has been discussion for several years about introducing more technology to the Scottish Courts system and the feeling among many practitioners is that the opportunity should now be seized.

If virtual courts are to be adopted permanently some consideration must be given to whether they are appropriate for all types of hearings.  Conducting procedural hearings virtually as a default would potentially lead to greater efficiency of solicitor’s time which results in cost savings for the client.  Furthermore, in the commercial courts, procedural hearings have been conducted virtually for a number of years.  In debates, there is no witness examination and the parties only refer to legal authorities and so these could also be conducted virtually going forward.   The implications of conducting proofs remotely are more significant.   Witnesses must be examined and in complex cases there can be hundreds of productions.  Consideration would need to be given to how the technology would be used to refer to productions if virtual proofs were to be made permanent.  Further research and analysis would need to be carried out in order to assess the impact of examining witnesses virtually.

The legal profession has adjusted quickly to working from home and has become used to conducting meetings that would previously have been held in person over Zoom or Microsoft Teams.  Therefore, adopting virtual hearings for procedural matters seems like a natural extension to this new way of working.  From the client’s point of view, it is a way of doing business that is more efficient and that will save money.  If the changes introduced in response to the pandemic are adopted permanently, it is vital that significant investment is made into the IT infrastructure which underpins the court system.  Lawyers have access to the necessary technical equipment, but this is not necessarily the case for other court users.  A lay person appearing as a witness might not have access to a stable internet connection or reliable equipment.  In these situations, the virtual court becomes a barrier to access, and it becomes extremely difficult for them to effectively participate in proceedings.

Criminal - Summary Cases

Virtual summary trials were held in Inverness, and later, in Aberdeen to assess the competence of the proposed new default. Sheriff Principal Pyle published an interim report making recommendations some of which included that the virtual mode should become the default in all summary criminal trials across Scotland by autumn, with the period between now and then being used as time for effective training and engagement. Yet, one cannot help but question if virtual courts are viable considering the time required to properly prepare for online proceedings?

The report has been issued after only three virtual pilots were held. Can we really depend on these findings enough to make this procedure the default especially considering the cases heard were simple in nature, and there are much more complex cases which would need to be heard in court?

Lord Carloway’s warning against the defence of tradition extends to criminal courts. He expressed the view that primary legislation would be required to address some of the technical difficulties, but the use of virtual courts is not an option but a necessity.

However, in the future when this necessity turns into an option again, it seems most practitioners prefer the physical courtroom. Stuart Murray, President of the Aberdeen Bar Association, has expressed the Bar’s opposition to virtual courts stating that the matter is seemingly being driven by Police Scotland as well as Scottish Courts and Tribunal Services. Virtual custodies were introduced due to COVID-19 for persons who may have symptoms but are continuing as the popular choice with at least two custodies per day.

“A survey conducted by the Law Society of Scotland found that 76% of defence agents prefer a personal appearance in court, 30% did not see the complaint or petition before the consultation and 58% still prefer in person client consultation despite the proposal that all future consultations be remote. ”

Yet, there is not enough consideration being given to the needs of those in custody. Invisible medical conditions such as mental health and addictions issues arguably warrant practitioners be granted in-person consultation.

With virtual custodies, the difficulty in interpreting body language increases for the practitioner. The opportunity to consult would be best used in person since ample time should be allowed for discussion of evidence and ensure the client has access to those papers.

Criminal - Solemn Cases

The concept of a virtual criminal jury trial is unsurprisingly the most contentious. As Ronnie Renucci QC states, juries are an ‘integral and indispensable part of our criminal legal system.’ This indispensable facet of the Scottish legal system completely ground to a halt due to the COVID-19 pandemic - a predicament which was avoided during both World Wars. 

Jury trials did not resume until the third week of July. Following the recommendations by Lady Dorrian’s working group, juries were able to attend the High Court in Edinburgh and Glasgow whilst adhering to social distancing requirements. Due to these requirements, a digitally hybrid approach has been taken. In Glasgow, the jury is to be found sitting in the public gallery. They view the accused and witnesses on a screen. In Edinburgh, the jury watches the trial via a video link from a second courtroom. Notwithstanding the teething issues with adapting to cameras and sensitive microphones, Edinburgh and Glasgow practitioners involved in these first trials have provided positive feedback.

This approach is not without access to justice concerns. Socially distanced jury trials means multiple rooms must be used for a single trial and the diversity of the jury pool is potentially impacted by those who need to be excused from jury service due to the COVID-19 pandemic.

The latest announcement on jury trials in Scotland came at the end of our first week of research, that is, in Lord Carloway’s words the ‘bold and imaginative’ plans to use certain cinemas as remote jury centers. This is following a successful mock trial at an Odeon cinema and the affirmative feedback from the two-court model functioning well in Edinburgh.  Any discord so far appears to be light-hearted mocking of the idea of a jury sitting in a cinema rather than any objections in practice.

In order to consider whether virtual hearings could be a viable option in the long-term for jury trials, we have to grapple with core legal principles pertaining to access to justice which underpin the Scottish justice system. It is undeniable there are clear risks with having a jury spectate on a trial unfolding via a screen. We are faced with questions of fairness, ethics, legitimacy, transparency, formality and ensuring we have a process where justice is seen and felt to be done.

It will be interesting when we do know more about the psychology of virtual trials. Will a remote jury be more likely to acquit? If so - would this be due to the screen acting as a barrier to effective engagement with the witnesses and evidence? Or does the screen make things seem less “real” with the gravitas of the courtroom diminished and therefore risking miscarriages of justice?

Perhaps we have to embrace virtual jury trials as the consequences of not doing so are too severe. A backlog of High Court cases pre-dates the COVID-19 pandemic but undoubtedly, it has made it worse. As fascinating as the theoretical discussions in this area can be, each case in the backlog involves real people, their families and livelihoods. People prevented from trauma recovery due to the delay in their cases being heard. This has been raised as particularly devastating for rape case trials. On this issue, the Scottish Government now faces a legal challenge from Rape Crisis Scotland as they call again for judges to replace juries.

As a temporary measure, it seems we cannot avoid a video screen coming between the jury and the trial. Any permanent future of a virtual jury trial needs to be guided by data, but it also requires the Scottish legal profession to be open-minded. We certainly should not be shying away from any digital set-up which makes criminal proceedings more accessible and dignified for all those involved.

England and Wales

In England and Wales, the courts were much quicker of the mark in their adoption of technology to carry on business.  In his statement , The Lord Chief Justice, Lord Burnett acknowledged the vital role that technology would play if the justice system was to avoid grounding to a complete halt.

The response from the legal profession in England has been broadly similar to practitioners in Scotland.  The Civil Justice Council in England carried out a rapid review of the impact of COVID-19 measures on the civil justice system.  The majority of the responses they received were from lawyers.  71.5% of respondents described their experience as positive or very positive but equally concerns were raised about the fairness of virtual hearings particularly in the context of family courts where vulnerable and distressed parents are participating from home with their children and the difficulties for lawyers to provide support to people virtually before, during and after an emotionally complex case.

Discussions about virtual courts have been ongoing for decades on both sides of the border but the coronavirus outbreak has pushed the debate further up the agenda.  Professor Richard Susskind has written extensively on the role of online courts and the digitization of the justice system.  In response to the rapid adoption of virtual courts he has set up Remote Courts Worldwide.  All jurisdictions are at the start of their digital journey and so there are certainly opportunities for shared learning.  In Professor Susskind’s view the shift to online courts has been “an unscheduled and vast experiment” which has so far “worked rather well”.

China

China is a stark example of a country which reformed its judiciary to suit the needs of its legal system. With three successfully running smart courts created in 2017 and 2018, Chinese practitioners use the e-litigation platform online. In a bold action, China also introduced artificial intelligence judges in December 2019 which pass judgement via chat apps. By providing AI Judges to carry out litigation processes, the burden on the human justices is eased. In return, the justices observe the proceedings, only interfering to make the major rulings in each case.

The Supreme People’s Court of China published a white paper detailing that the internet courts had accepted 119,000 cases. 80,000 of these were conducted online throughout the whole process – from start to finish. 98% of the parties accepted first-instance judgements and ceased further appeals.

With the pandemic, all courts in China followed the footsteps of these smart courts and followed litigation processes online in a similar manner. Such practice is definitely not foreign to the Chinese judiciary. Professor Wu Chen commented that “China’s judicial circle tends to embrace any new thing that is useful, including technologies”. He suggested that the UK do the same.

Technology versus Tradition

Technology is a part of all aspects of life in the 21st century and cannot be escaped.  Steps to modernise the Scottish legal system and embrace technology in the courts had been taken prior to the pandemic. Various digital solutions are already in place such as the online service ‘Civil Online’, vulnerable witnesses providing evidence via video link and the use of pre-recorded witness evidence. However, the Scottish legal system was slow to embrace the virtual courts following the lockdown announcement.  This was due to several long-standing issues including poor IT infrastructure, lack of funding and inadequate provision for people who are digitally excluded. 

“If the virtual courts are to be adopted permanently it is vital that these issues are addressed and that their adoption is informed by data, rigorous analysis and the views of all court users.   ”

The delay in embracing new technology is tied into the traditions which bind the Scottish Courts.  The legal profession in Scotland are incredibly proud and protective of the traditions which permeate the Courts, but this is perhaps a hindrance to their progression and development.  The future legal profession in Scotland will be formed of lawyers who have studied the LLB primarily online, who participated in virtual summer schools and internships, who have networked online and who even began their traineeships online.  The courts should, in our view, operate with this in mind.  It is our view that there is space for both tradition and technology in the Scottish legal system.  It should not be a case of one against the other. 

VE DAY 75: SCRAPBOOKS OF WW2 SERVICE

May 8th 2020 marks the 75th anniversary of VE Day - the end of the Second World War in Europe. During the six long years of conflict, the WS Society kept a scrapbook of news about Writers to the Signet in service at home and abroad. James Hamilton introduces this poignant resource.

One morning immediately following the outbreak of the Second World War, the Signet Library’s Librarian Dr. Charles Malcolm led his team of staff upstairs to a display case in the Upper Library. One by one, every staff member wrote their name and job title on the bare wood at the bottom of the case. Someone added the day’s date to the names. It is difficult to connect now with the apprehension and fear for the future that would have accompanied the staff’s actions that day. The absences created by the1914-1918 Great War were still fresh and painful, as were the battle memories of those members who had survived. Although no staff died on active service, all bar one would never work again. Assistant John Robertson, who joined the Library in 1919, had been at Gallipoli and ended his conflict in the war hospital at Southampton stricken with typhoid fever.  

When peace came again in 1945, it was Robertson who volunteered himself to compile the 1939-1945 Active Service Record, which the Signet Library has recently digitized and made available online. The sheer intensity of 1939-1945 meant that not every WS whose exploits were deserving of record made it into the scrapbooks, but the stories of those that do feature paint an extraordinary picture of bravery, tragedy, and selflessness. This is particularly the case in the incident that led to the awarding of the WS Society’s first George Cross to Lieutenant Alexander Hodge, solicitor of Rattray.

Like so many other Writers to the Signet, Hodge had been a member of the volunteer services in the years leading up to the War, his time in the Royal Naval Volunteer Reserve leading to his commission on board HMS Eagle. In August 1940, with the War still in its first year, there was an explosion in Eagle’s bomb-room. Hodge was on the main deck at the time, and immediately volunteered himself downstairs to a chamber “in darkness, full of heat and fumes” with injured and dying men on the floor. Hodge was “able to rescue and send up several badly-injured men” but in doing so realized that there was another, “trapped under two very heavy bombs.” With assistance, he freed this man and did not return to the deck until he was confident no one else in the room was left alive. “He saved all the lives he could though, for all he knew, further fatal explosions might have occurred at any moment.”

Not every exercise of courage could be recorded. An unknown number of Writers to the Signet worked in intelligence, and one, Robert Bertram Laurie WS, is believed to have been engaged with the French Resistance behind enemy lines an entire year before the declared, official date on his call-up papers. Ian Mackenzie WS is recorded merely as having been killed at Roumana in April 1943, but the memoirs of his commanding officer at the Battle of Wadi Akarit, Major Davidson of the Seaforth Highlanders, recalls that when the surviving dozen or so of the Company formed up in a final last-ditch defensive position,  “Ian Mackenzie had disappeared. He was afterwards found well forward. He must have been cut off but had fought to the last. There were three dead Germans lying near him”.

Not every story in the record ends this way. A worried piece in the Evening Dispatch of May 1943 records the disappearance in the Western Desert of Major Patrick Oliphant WS, a well-known cricketer in peacetime and the son himself of a Writer to the Signet. But Oliphant was alive and in the hands of the enemy. His imprisonment at Tunis would last less than a month before British forces overtook and freed the city, and he would fight on. Oliphant was wounded on the beach at Anzio in 1944 and survived the War, ending it an acting Lieutenant-Colonel. He would go on to become Deputy Keeper of the Signet in 1964.

Nor are the scrapbooks solely devoted to the WS Society’s fighting members. In December 1939, Dr. Malcolm pasted in a cheery photograph of one of the Society’s oldest members, William Ketchen WS, wearing an Air Raid Warden uniform and steel helmet in his 80s and beaming at the camera before a wall of sandbags. The photograph was signed with his warm Christmas wishes. In peacetime he had been election agent for Prime Minister Herbert Asquith and Keeper of the Register of Sasines in Register House.

But losses were grievous and went right to the very top of the Society. Deputy Keeper Sir Ernest Wedderburn’s son, also Ernest, was a leading Scottish mountaineer and author of a book on the subject. He had badly weakened his heart in the execution of a daring mountain rescue in the late 1930s, but desperate to play his part he concealed this from recruiters and officers alike, serving in France and North Africa before joining the long brave Scottish slog northwards through Italy (commemorated by the great Hamish Henderson’s song “We Are the D-Day Dodgers”). He was killed in an accident in Aquila late in 1944 and a copy of his book was donated to the Signet Library in his memory.

These are just a few of the stories preserved at the Signet Library which continues as the place of record of the lives and service of Writers to the Signet and others. We are keen to hear receive recollections of lawyers’ service in any form.