THE WS SOCIETY’S DIET OF ADMISSION AND AGM took place on Tuesday, the first time in living memory that the two events have been held together. It was historic also for an address by the Keeper of the Signet, The Right Hon. Lord Mackay of Clashfern KT. An audience of Writers to the Signet and guests assembled for the occasion in the Signet Library to hear the names read out of 20 newly admitted Writers to the Signet taking the special oath de fideli. In his remarks Lord Mackay spoke of the Society’s “extraordinary facility over the centuries to meet new challenges”. He praised the Society for opening up of the Signet Library building to the public and launching the five star cafe restaurant Colonnades. Commenting on the reputation of Writers to the Signet, Lord Mackay said: “I had the good fortune to hold high legal office in England. There were many occasions when Writers to the Signet were referred to as a very special brand of lawyer. I agree”. After his address, the Keeper and guests withdrew and the AGM began. Deputy Keeper Caroline Docherty WS gave her report in which she said it was impossible to overstate the existential challenge to the Society created by the impact of technology on library buildings. She reported that in 2015 the Society had “grasped the nettle” by refashioning how the Signet Library is used, creating a compact, modern legal research centre in the new west library, freeing up the lower library to be transformed to allow the public to enjoy Colonnades alongside lawyers still using it as a place to work. Describing the image the building presents to the outside world as open, inclusive and vibrant, the Deputy Keeper explained that this fits within a wider strategy to refresh “WS” as an original, authentic legal brand expressing values like excellence, integrity, stability, knowledge and style that appeal to the public. Treasurer Roddy Bruce presented the accounts and spoke of his and the office bearers’ confidence that the Society’s strategy is bearing fruit and will give the Society a sustainable long-term future for the Society as one of the country’s most important institutions. The reports, accounts and other formal business were all conducted with unanimous approval before everyone re-joined Lord Mackay and guests for a drink in the lower library salon.
ANYONE LOOKING FOR WALTER on such an occasion would be disappointed as he is even more retiring when the building is full of visitors. He appears to sense the importance of such gatherings, but they seem to bring out his reclusive side and he keeps his own company. It would be fair to say that his humour at this time of year is unsettled by the annual influx of noisy buskers on the Royal Mile. He wears a pained expression. You might say Walter does not do “banter”. He seems grateful for the Society’s personnel insisting upon observance of the bye-law prohibiting busking in Parliament Square during working hours. The Edinburgh Festival Fringe, well, that’s another story.
WESTMINSTER SELECT COMMITTEE ACTION on Tuesday focused on Sports Direct’s media-shy founder and majority shareholder Mike Ashley who appeared before the BIS Committee following media reports, particularly in The Guardian last year, concerning working practices at the company’s 800,000 square foot warehouse at Shirebrook, Derbyshire. MPs first heard evidence from two trade union officials from Unite. Even the most ardent advocate of free enterprise would surely have to concede that the two officials gave an impressive and impassioned performance, testifying to the balancing role of trade unions in the economy. They made the point that no business is sustainable that depends upon, or turns a blind eye to, degrading and unsavoury work practices. The officials said that the casualisation of workplaces – agency outsourcing, zero-hour contracts and a “workhouse” culture of fear – would continue to spread across industry in Britain unless something was done by MPs in response to high-profile cases. In contrast, three representatives of the two agencies used by Sports Direct came across as vague, evasive and unconvincing. If they were central casting for a modern adaptation of Dickens, Ashley himself was the central character. He gave a dissembling, stream of consciousness, faux-reasonable performance in which he made some startling admissions, all in the style of a genial but scary East Enders Mr Big: “I’m not Father Christmas, I’m not sitting there saying I’m going to make the world wonderful”. Asked if he was a kind person: “I would say I am kind to the right people, to the genuine people. And that’s not just waffly stuff”. On the other hand, he denied knowledge of serious allegations, such as female workers being offered longer hours in return for sexual favours. Ashley has come in for some excoriating comment. Guardian columnist Aditya Chakrabortty wrote: “You’re a greedy, immoral man who has pocketed millions from treating humans like battery hens”. MPs seemed to adopt a “give him enough rope” approach but it was surprising that they let him off for describing himself as the majority shareholder without pressing him on his duties as a director and executive chairman. Corporate governance at Sports Direct has long been a concern in the City and Ashley’s frequent admissions to MPs that he has little control or knowledge of large parts of the company’s business will not have reassured investors. His admission that the company broke the law by paying below the minimum wage may result in a multi-million bill in fines and back-pay. HMRC is on the case. Bizarrely, Sports Direct’s share price was up 6% on the day.
THE JOINT SELECT COMMITTEES’ BHS INQUIRY was back on Wednesday to hear evidence from BHS’s operational CEO and CFO and from Dominic Chappell, the wheeler-dealer behind Retail Acquisitions, the ramshackle consortium that purchased BHS from Sir Philip Green’s retail empire, Arcadia. If the Sports Direct inquiry puts pile-‘em-high-sell-‘em-cheap “entrepreneurship” on trial, the BHS inquiry is turning into an inquest into the morality of corporate and property deal-making in modern Britain. It was an extraordinary day of testimony, all the more so bearing in mind this is just the warm-up act for Green’s appearance next week. Chappell is a gift in many ways with his initially plausible motor-mouth deal-speak. He was pressed by MPs on his credibility and motives in taking a punt on BHS and its property portfolio despite the losses, under-investment, pension fund deficit and lack of funding other than self-interested support from Green. The BHS CEO described Chappell as a “Premier league liar and pub team retailer” and claimed that at one point Chappell had threatened to kill him if he made any more fuss about dubious cash transfers out of BHS. Chappell himself, to audible gasps, tried to dismiss as an irrelevant sideshow one transfer of funds to meet his father’s personal mortgage. Chappell laid the blame for BHS’s demise at the door of, first, the Pension Regulator for serving a statutory notice which he claimed blighted BHS’s credibility in the market and, secondly, Green for putting BHS into an administration when he allegedly “went insane” on hearing that Chappell was talking to Mike Ashley of Sports Direct about getting involved. Surely at the end of all this Westminster’s parliament.tv will issue a “Best of” DVD box set of the inquiry’s sessions in time for the Christmas market?
FROM THE CREATORS OF HIT AMERICAN LEGAL DRAMA “Damages”, last year’s “Bloodline” was one of Netflix’s most highly acclaimed and successful original series. Now back for a second run of episodes, the saga serves up a storyline at once relatable and mysterious; a dysfunctional family, an apparently idyllic Florida location, an unexplained death. The cast is second-to-none: Sam Shepard and Sissy Spacek as the elder Rayburns, parents to “good” son Detective John Rayburn (Kyle Chandler, already a cult figure for his portrayal of Coach Taylor in fan favourite “Friday Night Lights”), “good” daughter Meg, a successful lawyer (Linda Cardenelli), not-quite-so-good-son Kevin (Norbert Leo Butz) and really-not-good-at-all son Danny (a mesmerising Ben Mendelsohn) whose return to the family fold sparks a tragic turn of events. Much of the drama centres around legal affairs: inheritance and legacy are constant themes, with Meg left to transcribe into legal documents the opaque and problematic question of her father’s will. His wishes regarding the future of the family business, a luxury bespoke hotel and the related tangle of lies, jealousy and secrets are the stuff of a private client lawyer’s nightmares. At the same time, Meg is handling a big property deal with a New York firm, leading her to question whether the sleepy south is really where she wishes to spend the rest of her career. Series 1 and 2 are both available on Netflix now.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Legal buzz
THE WEEK AT THE SIGNET LIBRARY began bright and early with an international congress of over 200 judges from Brazil. The Associação dos Magistrados Brasileiros (AMB) have been visiting important legal sites throughout the UK – such as the Supreme Court in London – as part of their congress in the UK. Naturally, the Signet Library was on their list. Deputy Keeper Caroline Docherty WS welcomed the judges to the building and gave a brief history of the Writers to the Signet. Advocate David Parratt QC then gave the judges a rapid tour of Scotland's court structure and procedure, recommending that pronouncing “record” (as in closed record) would communicate instant credibility in matter of Scots law. WS Society CEO Robert Pirrie WS spoke about the history and function of solicitors, commenting that transacting business required “an understanding that law is only one element in human affairs and often not the most important”. All this was translated to Portuguese by three interpreters in a booth installed in the upper library. During Pirrie’s presentation noises-off interrupted proceedings when the three interpreters became mightily distracted by a wasp in their confined workspace. Much flapping ensued before the insect was eventually killed to a round of judicial applause. Asked by the congress chair if he would be prepared to take on the defence of the interpreters in the homicide of the wasp, Pirrie said: “A special defence of provocation applies: the wasp was very excessively aggressive.” The morning’s events were concluded by James Woolf QC as Dean of the Faculty of Advocates, whose imminent appointment as Lord Advocate had been announced that very morning.
“THE WASP WAS EXCESSIVELY AGGRESSIVE.”
TUESDAY MORNING ALSO SAW ANDREW STEWART QC WS installed as a Senator of the College of Justice with the judicial title Lord Ericht. Following the ceremony, Lord Ericht celebrated with friends and colleagues at the Signet Library, with champagne served in the west salon of Colonnades before a lunch in the Commissioners’ Room. This followed the appointment of Eilidh Wiseman WS as President of the Law Society of Scotland.
ON WEDNESDAY AT THE HIGH COURT IN LIVINGSTON a mother and her civil partner were found guilty of murdering a toddler in March 2014. The high-profile case left politicians and welfare groups expressing outrage at multiple failures by the social services system. A campaign group opposing the Scottish government’s controversial named person legislation claimed the case raised more questions about the scheme. Fife, where the murder took place, is one of a number of regions currently implementing a pilot of the initiative. Campaigners and opposition politicians questioned the government’s claim that the legislation was “working well”. Fife council have launched an independent review. The Times leader thundered that the issue wasn’t about the case coming to the attention of the system, but rather that the system hadn’t worked.
“THE CASE WAS IN THE SYSTEM BUT THE SYSTEM HADN’T WORKED.”
THE WESTMINSTER PARTY IN GOVERNMENT was in court in Kent attempting to prevent an election expenses investigation by Kent police being given any more time. District Judge Barron found against the Conservative party, stating “In my judgement the combination of circumstances before me is wholly exceptional and goes far beyond the usual circumstances that would exist in a typical case where election expenses are being investigated”. Michael Crick, Channel 4 News’ celebrated political correspondent has been pursuing the story in his inimitable style. The Guardian’s Michael White is one of those to question why a situation that could hypothetically result in elections being voided and the Conservatives losing their parliamentary majority has resulted in so little press coverage. Bizarre when even the EU referendum depends for its legitimacy on that election result.
“THE COMBINATION OF CIRCUMSTANCES BEFORE ME IS WHOLLY EXCEPTIONAL.”
CITY FIRM CLIFFORD CHANCE is conducting an inquiry for Conservative Campaign HQ into allegations of bullying by Mark Clarke, the man in charge of the party’s Road Trip campaign. Coincidentally it is the expenses incurred during s this initiative – which involved bussing in large numbers of activists to marginal seats – that is at the heart of Michael Crick’s investigations. An inquest into the death of Elliot Johnson, a 21 year old Conservative Way Forward worker heard Clark had threatened “I squash them like ants when they’re small and young – that’s what I’m going to do to you”. The coroner ruled Mr Johnson had committed suicide after being made redundant by CWF.
A LOVE LETTER TO THE BRITISH PEOPLE arrived on Thursday from a friend of the WS Society, Philippe Auclair, who was one of the panel at the WS Society’s successful football evening in association with The Blizzard and Tennents. Written by Auclair and several others, the letter has now been subscribed by a host of European writers, journalists, Nobel prize holders, sportsmen, filmmakers, scientists, broadcasters and many, many others distinguished in their fields. The letter is intended as a reminder to the British people of the affection and respect in which their country is held in Europe and an expression of earnest wish that the UK will vote to stay in the EU.
INVESTIGATIVE JOURNALISTS ARE ALSO AT THE HEART of the Oscar winning film Spotlight, made available this week on pay-per-view. Two lawyers, Eric McLeish (Billy Crudup) and Mitchell Garabedian (Stanley Tucci) find themselves on opposites sides in this true story of the Boston Globe’s Pulitzer Prize-winning work in uncovering the massive scale of child sexual abuse by Catholic priests in Boston. Crudup is happy to take small compensation payments for his clients and ask no further questions of the church hierarchy: Tucci is obsessive in his fight to prove the cover-up goes right to the Cardinal.
A VERY DIFFERENT APPROACH TO TRUE-STORY DRAMA is employed in The Big Short, also available on pay-per-view this week. Adapted by celebrated business writer Michael Lewis from his best-selling book about the 2008 Wall Street crisis, the film follows a motley bunch of anti-heroes to explain credit-default swaps and the like in uniquely entertaining fashion. Along the way it provides an unbeatable repository of great quotes, stemming from the misfits’ view of the blissful ignorance of most of the big banks and hedge funds in the immediate run up to the crash: “So now their foot’s on fire and they think their steak is done – and you’re surprised?”; “Tell me the difference between stupid and illegal and I’ll have my wife’s brother arrested”; (walking into a financial convention in Las Vegas) “It’s like someone hit a piñata full of white people who suck at golf”… the one liners just keep on coming.
“HOW SOON BEFORE LAW FIRMS SECURITISE THEIR BILLABLE HOURS AND WIP?”
AN IMPORTANT NEW BOOK available this week is Makers and Takers: The Rise of Finance and the Fall of American Business by Rana Foroohar, Time Magazine’s economic columnist and global economic analyst for CNN. Foroohar contends that there is a crisis in modern developed economies, particularly in the US and UK, which she attributes to “financialisation”. The term is a catch-all for the proliferation of Wall Street and City mentality into every corner of the economy. Historically the financial markets provided a source of capital for businesses. Foroohar says that today only around 15 % of all the money in our market system actually ends up in the real economy and “the rest stays in a closed loop within the financial sector”. The financial sector accounts for 25% of US corporate profits whilst creating only 4 % of the country's jobs. Even big tech companies now underwrite corporate bond offers just like banks. Energy and transport firms have moved on from using hedging to manage risk to speculating in oil futures as a profit-boosting end in itself. And so on. It could be said that law firms too have “financialised” with their focus on the bottom line and KPIs to drive profitability and measure performance. Contingency and success fees are a form of speculation. How soon before law firms securitise their billable hours and WIP?
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Alcohol, sport and discrimination
“A GAME OF NO HALVES”: one headline writer’s reaction this Wednesday to the news that the French city of Lens has announced a 24 hour public drinking ban when England play Wales in next month’s European Championships. This follows ugly scenes inside Hampden at the end of last weekend’s Scottish Cup Final, with a pitch invasion by thousands of victorious Hibs fans and accusations that opposition players from Rangers were assaulted following the final whistle. A question from the audience at last week’s Blizzard event at the Signet Library wanted the views of the panel as to why alcohol was not permitted at football matches. These events only served as a reminder of potent negative associations around alcohol and football that inevitably result in laws such as this unprecedented prohibition order in Lens. One member of the panel, writer and Guardian contributor Jonathan Wilson, turned the issue around and pondered why it is that some football fans regard alcohol as such an integral ingredient of the experience of attending a football match.
FRANCE WAS ALSO THE CENTRE OF ATTENTION this week following a dawn raid by French authorities on Google’s Paris HQ. 100 police officers, five magistrates, 25 computer experts and about 100 tax officials entered the US internet giant's premises at 5 am. The state financial prosecutor (PNF) said the searches relate to allegations of “aggravated financial fraud and organised laundering of aggravated financial fraud, following a complaint from the French tax authorities”. Investigations centre on whether Google Ireland Limited controls a permanent establishment in France and if, by not declaring activities conducted on French territory, it is guilty of non-payment of corporation tax and VAT. Google is accused of owing the French government £1.2 billion in unpaid taxes. Reports in the press allege the Californian tech giant is believed to have minimised reported profits and therefore tax liability in the UK, France, Italy and other major European markets by collecting advertising revenue through its Irish subsidiary.
FOOTBALL WAS NOT THE ONLY SPORT enduring negative publicity this week: the single-sex golf club policy continues to be publicly condemned, with Glasgow City Council – now official partner of Royal Troon for the Open in July – urging the Ayrshire golf club to “enter the modern world” and allow women to become members. If not, an R&A source told the press, the club will be stripped of its place on the Open rota, as Muirfield was last week. The East Lothian club is understood to be convening an extraordinary general meeting to consider the fallout from their narrow vote against admitting women on the same terms as men. The loss of major tournaments would lead to a decline in prestige – perhaps at that prospect all the members will finally take notice. Statistics suggest golf is in decline and golf clubs failing to attract younger members. Certainly the Muirfield debacle has not helped the sport's reputation.
THE PARTICULAR CHALLENGES FACING WOMEN IN THE LEGAL PROFESSION were breathtakingly apparent in a peerlessly sour piece by Jan Moir in the Daily Mail, in which she savaged Amal Clooney for adopting “a knock-kneed girlish pose… a little girl in a party frock taking her grandpa out for the day”. Fellow lawyers took to Twitter indicating they were less than impressed with the article’s sexist undertones. Some poked fun at Moir’s sketchy grasp of the English legal system: “Clooney works for the right-on, left-wing Doughty Chambers in London, a set of self-regarding high achievers who like to call themselves human rights lawyers, but surely all law is human rights?” Human rights lawyer Shoaib Khan tweeted in response “So that’s Doughty St told then… by those well known human rights experts at the Daily Mail.” It all recalls the occasion a journalist asked Mrs Clooney, making her way into court, which designer she was wearing that day. “Ede and Ravenscroft” the barrister replied.
CORPORATE AND PENSIONS LAW GEEKS have had a bit of a festival this week, with the appearance before MPs of lawyers from Linklaters, Nabarro and Eversheds, accountants from PwC, KPMG, Deloitte and Grant Thornton, BHS pension fund trustees, Ian Grabiner, CEO of Arcadia, and his cousin, Lord Grabiner, Chairman of the Board of Traveta Investments (the offshore vehicle, owned by Sir Philip Green’s wife Tina, that owns Arcadia). The joint inquiry of the Work and Pensions and the Business Select Committees, in endeavouring to uncover the events that led to the collapse of BHS, found little illumination from these witnesses. It would be hard for some viewing the hearings to escape the impression that one or two of those present viewed the whole thing as below their pay grade. This is not a look that plays well in the world beyond the corporate boardroom. The lawyers in particular do not play well. The accountants, on the other hand, came across as wanting to help. On the other hand, the recordings are a gift for tutors in corporate law and lawyer-client professional privilege. Law students should be given the option of viewing the entire proceedings as an alternative to a term's worth of seminars.
LIFE AT THE SIGNET LIBRARY IS NEVER DULL. Anyone enjoying the fine dining at Colonnades on Wednesday might have noticed the Archbishop of Canterbury Justin Welby lunching with the Moderator of the Church of Scotland and two colleagues. Consistently ranked in the top three on TripAdvisor it is not surprising that Colonnades is now one of the places to come in Edinburgh. The Archbishop was kind enough to tell WS Society CEO Robert Pirrie WS how much he had enjoyed his visit and heard a little more about the building and the WS Society. The week also saw the start of the General Assembly with a service at St Giles’ Cathedral, where the WS Society was well represented by the Deputy Keeper of the Signet Caroline Docherty WS and other Writers to the Signet.
TUESDAY NEXT WEEK sees the swearing in of Andrew Stewart QC WS as a senior judge, the first current WS to be appointed to the senior bench for 300 years. Any WS who wish to attend should contact Vincent Guérin.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Justice, equality and sport
WRITERS TO THE SIGNET ATTENDED more historic events this week with the formal swearing in of First Minister Nicola Sturgeon at the Court of Session on Wednesday. In the packed First Division courtroom before the Lord President, Lord Carloway, and 15 Senators of the College of Justice (the formal name of Scotland’s senior judges), Ms Sturgeon took the oath of office and signed the parchments. Lord Carloway said a few words for the occasion. He remarked that one of the functions of the court is to hold the government to account under the law but, he said, this does not mean there should not be dialogue. Writers to the Signet are members of the College of Justice and are well represented at these events by the Deputy Keeper and a retinue. Space on the bench permitting, any Writer to the Signet may attend such events and wear the gown of their office. There will be further swearing in ceremonies in the coming weeks, with the appointments of Cabinet Secretaries today and new judges, the latter including the first current Writer to the Signet to be appointed to the new bench for over 300 years, Andrew Stewart QC WS.
PROPERTY LAWYERS WILL BE INTERESTED to read the latest retail statistics coming out of the US. Retail stalwarts Macy’s, Nordstrom and JC Penney turned in their worst same-store sales growth in seven years, driving share prices sharply lower. One factor is undoubtedly the chronic drop in customer traffic to shopping centres and the loss of market share to online groups such as Amazon. America’s department stores are anchor tenants in two thirds of the countries shopping malls. Retail experts believe many US department stores keep these branches open owing to the expense of renegotiating leases. But there is another reason: stores find when they close a location, there is a corresponding drop in their online business in the area. Even Amazon is experimenting with physical stores in college campuses and urban centres. As ever, the behaviour of customers can confound the experts: the belief in the out of town behemoth as the future of supermarkets has fallen away with the popularity of smaller “local” stores in residential areas. The behaviour of experts can also confound the layman: incredible to think that private equity investors once shunned property and retail as too risky. What was that about?
TALKING OF RETAIL, THE BHS PLOT THICKENS. Lawyers and other professional advisers have been called to give evidence to the House of Commons joint select committees inquiry into the sale and subsequent insolvency of the sometime high street giant. They will be hoping for better reviews in the press than Pensions Regulator CEO Lesley Titcomb, who was condemned in the Times this week as “utterly unconvincing” by business journalist Ian King. (This is, after all, the organisation that teamed up with the Department of Work and Pensions to spend £8m of public money on a patronising “fun” monster “Workie” as a “striking physical embodiment of the workplace pension”. Just what the country needed.) It is not hard to imagine that MPs will be taking a close interest in the fees charged by professional advisers during the sale of BHS to the thrice bankrupt Dominic Chappell. The Daily Mail are already styling law firm Olswang and accountants Grant Thornton as “Fat Cats who got £6 million”.
GOLF HAS A REPUTATION for conservatism, tradition and, well, the elevation of etiquette to the level of phobic disorder. Golf is exceptional in that it comes with its own ideology, its own view of how the world should be and how people should behave. Golf courses themselves are a sort of idealised fantasy of the natural environment. This normative urge to prescribe how the world ought to be, rather than acceptance of how it is, feeds through to a social pathology around golf which is very particular. Golf clubs, after all, are social constructs as well as sporting facilities. This is often evidenced in attitudes about what kind of person should play the game, or at least play the game at your particular club. If the landscape can be idealised, so too can the social composition of a golf club and how people dress and behave. And so to Muirfield, the epitome of all that is good and, shall we say, less good about golf and its social pathology. Muirfield is in the news with the membership failing to achieve the necessary majority to allow the admission of women on the same terms as men. What’s embarrassed the club is the willingness of a hard core minority of members to express, as a badge of honour, their resolute, trenchant indifference to opinion from outside the club. They do not care how it looks. They simply wish to withhold equal status from women and exclude them from a true sense of acceptance and belonging. Institutions lose touch with the zeitgeist at their peril and endanger their future. Institutions are vulnerable to small minorities determined, and convinced of their entitlement, to stand in the way of progress and enlightenment. The Muirfield decision has been universally condemned. The club’s committee, who recommended reform, are disappointed but helpless. The R&A have acted quickly: “Going forward, we will not stage the Championship at a venue that does not admit women as members”. The First Minister couldn't have been clearer: "This is simply indefensible". The “voice of golf”, Peter Alliss, aged 85, thinks differently: “The clubhouse is full of bloody women. They love going there for nothing”.
FOOTBALL CLUBS ARE NO STRANGERS to financial controversy, and the end of the 2015/16 season this week saw the owner of Aston Villa, Randy Lerner, lose $400 million, according to the estimation of Forbes magazine, in his sale of the unhappy – and now relegated – club. Villa’s new owner is Chinese businessman Dr Tony Xia. The long suffering fans seem suspicious of the hyperbole surrounding their new owner. Such deals are familiar material to renowned international sports lawyer Paolo Lombardi, who appeared in conversation with top Scottish sports lawyer Bruce Caldow at the Signet Library on Thursday. The fascinating discussion included Paolo’s experience as Head of Disciplinary and Governance at FIFA and international football regulation.
THE FOOTBALL THEME CONTINUED yesterday evening with the first appearance in Scotland of an event by The Blizzard, a quarterly football magazine from a cooperative of top class football journalists. A sell out audience of 200 heard magazine editor Jonathan Wilson, regular contributor Philipe Auclair, the Scotsman’s Alan Pattullo and the Guardian’s Kevin McCarra talk all things football, Scotland and beyond. WS Society CEO Robert Pirrie introduced the event as the first of the WS Society’s new cultural programme, explaining the importance of football within the WS Society, both now and long ago. Underlying that point, the promotional materials for the event featured drawings created over 100 years ago by a Writer to the Signet, William Cumming, depicting a game of football between the staff of two Edinburgh law firms. Cumming was to live through two World Wars and continued in legal practice into his 80s until his death in 1962.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Politicians and legal literacy
THE SIGNET LIBRARY WAS AT THE HEART OF SCOTTISH LIFE this week, as it so often is, with the Kirking of the Scottish Parliament at St Giles Cathedral on Wednesday. HRH the Duke of Rothesay, Prince Charles, met the First Minister Nicola Sturgeon and Opposition leaders in the Lower Library but only after he had been introduced to Deputy Keeper of the Signet Caroline Docherty WS (Morton Fraser), Treasurer Roddy Bruce WS (Dickson Minto WS), Fiscal Mandy Laurie WS (Burness Paull) and Collector Simon Mackintosh WS (Turcan Connell). HRH and the First Minister spoke appreciatively of the restoration of the building and the opening of Colonnades.
TWO OF THE SCOTTISH POLITICAL LEADERS – Nicola Sturgeon and Kezia Dugdale – are legally qualified and the newly elected London Mayor, Sadiq Khan, was a human rights lawyer before he entered politics. The lawyer turned politician is a well-trodden path – 10 British prime ministers have been lawyers, and 24 of the 44 US Presidents have been lawyers. Donald Trump would not be a 25th. In recent times Cherie and Tony Blair were both lawyers, as were Hillary and Bill Clinton and Michelle and Barack Obama. In a campaign that was criticised by many for its unpleasant and personal nature, Khan, son of a Pakistani immigrant bus driver, found himself being attacked as untrustworthy by challenger Zac Goldsmith, scion of a billionaire tycoon and part-time environmentalist, because Khan has represented clients in actions against the police and accused of extremist views. The fact that a lawyer should be attacked for his clients was an example of a creeping legal illiteracy in parts of political life. Before his election as Mayor, Khan was the Shadow Lord Chancellor. Many lawyers have been disquieted that the last two appointments to the office of Lord Chancellor – Chris Grayling, and the incumbent Michael Gove – have absolutely no legal background. After all, this is an office held by some of the country's greatest legal figures. In any event, Khan’s career as a human right lawyer seems to have done him no harm with the voters of London. A victory for liberal democracy and human rights under the rule of law.
AN EQUALLY BITTER MAYORAL RACE is the subject of the new Netflix drama Marseille. This being France, however, it is an altogether steamier affair, with old incumbent Gérard Depardieu fighting off a personal challenge from his former protégé turned rival. The series kicks off with the murder of a judge in the run up to an election and just gets murkier from there. Parisian reviewers savaged it; Marseilles press loved it. Its most lasting legacy however, is as Netflix’s first 100% European production made available simultaneously to over 80 million viewers worldwide.
ONE OF THE MOST SUCCESSFUL US LEGAL DRAMAS of recent times, The Good Wife, ended this week in America. The multi award winning show followed the story of wronged political wife Alicia Florrick as she returned to work as a lawyer. Over seven seasons it interspersed timely legal stories (such as the Bitcoin or Monsanto sagas) with political, business and personal intrigue in considerable style – and the titular character’s wardrobe, (designer suits and Louboutins in all circumstances) wasn’t bad either. ICYMI the first six seasons are available now on All4.
THE BHS PENSION SHOW AT WESTMINSTER began this week with the chief executive of the Pensions Regulator, Lesley Titcomb, as the warm up act before the work and pensions and business, innovation and skills committees’ inquiry. Admitting that the first she knew of the sale of BHS was “when we read it in the papers” was something of a gift to the committees’ members and the media. This was not a command performance. Sir Phillip Green was quick to dispute this version of events and says the Regulator was notified. Cue a degree of backtracking from the Regulator: they knew a sale was in prospect but weren't informed of "the actual sale". Meanwhile Alan Rubenstein, chief executive of the Pension Protection Fund, the industry-wide lifeboat for failing pension funds, told the inquiry that he had passed on “intelligence” to the Pensions Regulator in 2012 concerning certain goings-on in Sir Phillip’s Arcadia group of companies. This show will run and run.
INSIDER TRADING is a dirty secret in London's Square Mile and does anyone seriously believe that the conviction this week of a Deutsche Bank chief is anything more than the tip of an iceberg?
SOME READERS MAY HAVE SEEN the feature A word about Walter this week. Walter the Scottie, the Signet Library’s resident dog, is, as the feature explained, reserved, and seemed rather nonplussed by VisitScotland’s unveiling this week of its “Ambassadog”. Everything in Walter’s disposition suggests he views the role of the dog as very much that of supporting player rather than starring actor. The fact that the winner out of 200 entries was a golden retriever may also explain Walter’s demeanour. It is probably not overstating matters to suggest that Walter gives every indication of viewing the retriever as among the less cerebral, more impressionable, of canines. That is not to say he does not appreciate their friendly and amenable manner. But still. It is likely that the tartan bandana so eagerly sported by the Ambassadog in the publicity shots would not play well with Walter’s way of thinking.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Elections, pensions and rebellion
SCOTTISH ELECTION TODAY and vote cast yesterday morning in Charlotte Square. Walter came along and waited on the pavement beside the A-boards and canvassers. Nobody minded a wee Scottie dog. The result's a foregone conclusion – Nicola Sturgeon will be First Minister with an outright SNP majority. Next up is the EU referendum on 23 June. Another trip to the polls with Walter.
“NOBODY MINDED A WEE SCOTTIE DOG.”
BHS's DEMISE HIGHLIGHTS a macro-economic pension problem. As viewers salivate over the prospect of Sir Phillip Green appearing next month before a Westminster select committee (or two), the BHS employee pension fund is widely reported to be £571 million in ‘deficit’. It’s a good headline because the sum neatly corresponds with estimates of how much Sir Phillip and family have extracted from BHS over the years. But it isn’t really the ‘deficit’: £571 million is the hypothetical cost of an insurance company buying out the pension liabilities, a transaction nobody expects to happen. The last actuarial valuation in 2014 reported the ‘deficit’ as £225 million, still a large number. How accurate is this figure? Here we enter a world of assumptions and hypotheticals steeped in jargon. But the key issue is how a pension fund’s future liabilities are measured. This is done by discounting them based on current gilt (i.e., government bond) rates. What this means is that when gilt rates collapse (as they have), the lower the discount, the higher the measured liabilities and the bigger the deficit. Simple. It is this practice that is generating the deficits. It's a double whammy too because over the last ten years defined benefit pension funds have roughly halved their investment in equities and doubled their investment in gilts and bonds to match how future liabilities are measured – a form of “financial repression”. This almost certainly lowers returns as well as limiting the funds available for investing in profitable economic activity. Meantime, higher measured liabilities means higher employer contributions, reducing what’s available to pay workforce salaries. This means younger employees bear the cost, through lower earnings, of older and former employees receiving pension benefits of which their younger counterparts can only dream. How big is this problem? Combined scheme deficits calculated in this way are estimated at £800 billion. Does anyone know if this is even half sensible? Not really. That’s why in March this year the UK’s national association of pension funds created a DB taskforce to think about it. It’s due to report in October. Meantime, only a rate rise will ease the scale of the real or apparent problem.
“AS RATES COLLAPSE, THE LOWER THE DISCOUNT ON LIABILITIES, THE HIGHER THE LIABILITIES, THE BIGGER THE DEFICIT.”
SOMETIMES A STORY IN THE MEDIA can highlight the importance of making a proper will more than an initiative by the Law Society of Scotland could hope to achieve. The ongoing saga over the estate of the late actress and unofficial national treasure Lynda Bellingham is a case in point. For weeks now tabloids and weekly magazines have been covering the increasingly bitter dispute between her widower, Michael Pattemore, and her two adult sons from a previous marriage. Bellingham made a will several months before she died leaving everything to Pattemore, but with the vague understanding that her wishes to provide security for her sons be respected. In an interview this week her son Robbie said his mother was always “very trusting and saw the best in everyone”. The sons claim Pattemore will not even allow them to take sentimental items such as photo albums from the family home. They do not plan to contest the will, although they have been battling with their stepfather to even see it. They believe she left everything to her husband because she thought she was “doing what was right by us” and added they were surprised by the large number of people who have contacted them to say they have had similar experiences following a family bereavement.
A FAMILY DIVIDED is also featured in Rebellion, the five part series made for Irish TV and available on Netflix, depicting the events of the Easter rising in Dublin in 1916 from protagonists on all sides of the political spectrum. As with so many civil war sagas, one brother battles against another, although Rebellion also put female characters at the heart of the action. The series received mixed reviews in Ireland, not least because of arguments about its historical accuracy. One area that historians do agree on is that support for the rebellion only took root amongst the population at large after the British courts martial began to execute the rebels. This was presented in the series through the perspective of a young Belfast lawyer handling some of the prosecution cases. The prisoners were not allowed defence counsel. Through the sympathetic portrayal of this character the series was able to deal with some of the many shades of grey that are still debated one hundred years on. The production also gave a believable depth to the minutiae of the work of those carrying out the administrative tasks that continue to be necessary even as history is being made.
“THE PRISONERS WERE NOT ALLOWED DEFENCE COUNSEL.”
LAST NIGHT REAL MADRID overcome Manchester City 1-0 in the staggeringly impressive Santiago Bernabeu. They will meet Atletico Madrid in the Champions League final in Paris. What a prospect! Why don’t we have stadiums like the Bernabeu in this country? Or like Borussia Dortmund’s Westfalenstadion? Instead new stadiums in the UK tend to be insipid and lack atmosphere. Arsenal’s Emirates is a good example as is the ‘new’ Wembley. Football stadiums should have seating to the edge of the pitch with the stands towering above on all sides, teeming with flags and colour.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Tycoons, boats and bankruptcy
Déjà vu on reading that corporate financiers Duff & Phelps are appointed administrators of BHS, a well-known business sold not so long ago for £1 by a knighted tycoon with strong Bank of Scotland ties. To an implausible and obscure buyer. Allegations quickly follow of asset stripping, governance failings, mismanagement and profiteering. The vultures arrive including Mike Ashley of Sports Direct. Sound familiar? Last time it was Sir David Murray, Craig White and Glasgow Rangers FC. This week it’s Sir Phillip Green, Dominic Chappell and department store BHS. Media attention focused on £586m paid out since 2002 to Sir Phillip, his family and other shareholders as the business was hollowed out and the employee pension fund went from modest surplus to a whopping £571m deficit. Employees, customers, suppliers and creditors are left high and dry just as Sir Phillip takes delivery of his new $100 million yacht.
“MY BIRTHDAY PRESENT WAS A DISPOSAL AS OPPOSED TO A PURCHASE.”
From a legal standpoint, the BHS story has something for everyone. Whether you’re corporate, insolvency, pensions, property, banking, media, employment or litigation, this affair, like the Rangers saga, has it all. This insolvency ranks with the banking scandals and other failures in corporate governance and management revealed when the economic tide went out after the 2008 crash. Within hours of the administrators being appointed, Sir Phillip’s once lauded Midas touch became the “unacceptable face of capitalism”. His comment to the Sunday Times on selling BHS to Chappell’s Retail Acquisitions couldn’t have been more frank: “I think my birthday present was a disposal as opposed to a purchase”. Meantime, as Times business editor Patrick Hoskings pointed out on Wednesday, the BHS pension trustees seem to have been asleep at the wheel. What is it with tycoons, super-yachts and pension holes? More déjà vu - if you’re old enough to remember Robert Maxwell.
Talking of football and previous eras, the longest running inquest in UK legal history came to a close with a verdict of unlawful killing of the 96 Liverpool football fans who died at an FA Cup semi-final at Hillsborough stadium, Sheffied on 15 April 1989. The inquest exposed disturbing “establishment” attitudes and cover-ups towards football fans primarily from working class communities. These events occurred just five years after the bitter miners’ strike and the infamous Battle of Orgreave when police and miners fought a pitched battle and the government spoke darkly of the “enemy within”. Whilst it has taken 27 years for the legal system to redeem itself, it’s worth recalling too that the report of Lord Justice Taylor in 1990 was the catalyst for transforming football stadiums to the more civilised, safe environments they are today. This was a process that had started much earlier in Scotland with Lord Wheatley’s report and the modernisation of Ibrox Stadium in Glasgow in the wake of the 1971 Ibrox Disaster when 66 people were crushed to death shortly after the final whistle of the Rangers v Celtic match on 2 January 1971.
Writers to the Signet were the witnesses to history being made in Court 1 in Parliament Hall with the swearing in of Lady Dorrian as the first woman to hold the rank of Lord Justice Clerk, Scotland’s second most senior judge. The Lord President quipped that it is said that Lord Dorrian comes from Edinburgh but her origins are, in fact, from Leith. Lady Dorrain herself said she was proud to be the first woman LJC but not, she thought, the first from Leith.
Peter Moffat, former barrister and now playwright and screenwriter, has so far created three legal dramas for British TV: North Square, Criminal Justice and Silk, which as the FT noted “provoked both mirth and irritation in the business”. His latest, Undercover, currently showing on BBC 1 in the primetime Sunday night slot, seems likely to do the same. A drama about the first black female DPP might seem like an exciting opportunity to explore many of the issues affecting the legal profession today. However, the first episode alone seemed like a textbook example of suspending disbelief by its ankles till it pleaded for mercy, with the central character Maya (Sophie Okonedo) flitting between the DPP interview, a client on death row in America, and her dashing husband Nick (Adrain Lester) who is – SPOILER ALERT- actually undercover and spying on her because of her dangerous left-wing tendencies. Maybe some will enjoy it, but only those who like their fiction much, much stranger than truth.
Shock, horror. Tech giant Apple reported this week the first decline in quarterly sales for 13 years and $40 billion was wiped off its stock market valuation within hours. A brief guide to everything that’s annoying about Apple in the Guardian lists the common complaints.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Human rights and looking good
Last weekend’s Old Firm game was eventful enough but even had something for legal theorists. Alex Massie’s op-ed in the Times drew attention to the issues raised by Police Scotland’s decision to pre-emptively take into custody over the weekend “serial domestic abusers” who were “thought to pose a risk” after the game. This seems entirely justified but the underlying principle is perhaps more troubling. The concept of predictive criminal acts has hitherto been the stuff of science fiction – remember Tom Cruise in Minority Report drawing on Philip K Dick’s novel of the same name. Massie drew a parallel with the controversial “named person” legislation proposed by the Scottish Government whereby all Scotland’s children would have a professional appointed to monitor their wellbeing. Massie points out the potential human rights issues raised by both initiatives. If you like your analytical jurisprudence to be practically focused, Massie is worth a read.
“EVEN THE VIOLENT AND UNSAVOURY HAVE RIGHTS.”
On the subject of human rights, the Guardian reports that a court in Norway has found that the country has violated the human rights of Anders Breivik, the violent right wing extremist who killed 77 people in July 2011 in the country’s worst atrocity since the Second World War. Breivik enjoys a thee room cell complex with access to video games, TV, books, newspapers and exercise. However, the court found that his solitary confinement offended the European convention on human rights prohibition of inhuman and degrading treatment. Breivik is in principle allowed visits from friends and family but, strangely enough, only his mother has visited and she has since died. Norway prides itself on its enlightened rehabilitative penal policy and the decision has perplexed the Norwegian Institute of Human Rights.
Talking of violent Scandinavian right wing extremists, the Swedish drama Blue Eyes on More 4 (Friday and All 4 catch up) is worth a watch. The series follows a young member of the Justice Ministry in the run up to a general election. There are dirty tricks and sinister goings on swirling round the Ministry and the show builds a complex picture of the rise of right wing extremism behind the veneer of Ikea design and eco-friendly Volvos.
The saga of the latest super-injunction dominated press throughout the week. A YouGov survey found 50% of those questioned knew the identity of the “married celebrity” at the centre of the case. Again, the realities of the digital are proving challenging to the courts. And, again, those pursuing injunctions seem only to subvert their original aim, since no scandal in recent times has received so much coverage.
Few in the legal profession have had to cope with the level of celebrity of British barrister Amal Clooney, since she married a certain American actor. Addressing an audience in Dallas, Clooney talked passionately about her work as a human rights lawyer. She also addressed some of the more surreal aspects of her position, such as the magazine that published a picture of her in her barrister’s wig next to a portrait of George Washington with the eternal question: “Who wore it best?” She won, but only “because apparently I have better teeth”.
For fictional legal sagas, few have proved as enduringly gripping as the French drama Spiral which has been running in France and on BBC4 since 2005. ICYMI, Spiral follows the interweaving lives of key characters in the French judicial system in Paris, from police detectives to prosecutors, defence lawyers and judges. It’s for the comparative jurists to ponder the respective merits of the civilian criminal justice system and the adversarial system. Whatever, the teamwork between the investigating judge, prosecutor and police makes for compelling TV.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Sharing the pizza
The Panama papers continued to rumble on, with politicians including the Prime Minister and the Chancellor releasing their tax returns. Meanwhile, the lawyer at the centre of the scandal seemed unconcerned, if the interview he gave The New York Times was any indication. Ramon Fonseca, one of the co-founders of Mossack Fonseca, explained his philosophy of wealth creation: “I believe in sharing the pizza. At least to give others one slice”. No mention yet of any Scottish law firms in the 11.5 million documents.
“I BELIEVE IN SHARING THE PIZZA.”
Are the first shoots of a homegrown scandal appearing with the spring? Reports of 7,000 Edinburgh school pupils unable to return to classes after the Easter break due to safety concerns with buildings constructed under the controversial PFI/PPP initiative of the Labour/LibDem coalition at Holyrood were seen by many in the press as a precursor of much bigger trouble ahead. Quite who else in the wider community – banks, lawyers, accountants- may be caught under the figurative rubble remains to be seen.
Meanwhile, the Scottish Legal Complaints Commission received feedback on its draft strategy document. The Law Society of Scotland in particular seemed very eager to help: “... four out of your five priorities do not even mention the word ‘complaints’. For a body which has been established to handle complaints... we find this astonishing”. The consultation response from the Faculty of Advocates elegantly reminded everyone of a few fundamentals that were otherwise lost in the diagrams – such as the concept of vires and the difference between clients and consumers.
Anyone forgetting the old adage “truth is stranger than fiction” need only consider the O.J. Simpson trial of 1995, currently being dramatized as The People vs O.J. Simpson. The enormously entertaining and brilliantly cast series reached its penultimate episode this week, focusing on the judge and two lead prosecutors. It was a reminder that the media circus affected ordinary real-life state employees, as well as creating the meta- drama of the Kardashian Klan. As the DA commented of OJ’s best friend Robert Kardashian: “Who even knew he was a lawyer?”.
Equally must-see television is the Danish drama Follow the Money on BBC 4, which although fictional, feels all too real. The young lawyer at the centre of the story bought into the success of “Energreen”, the green energy company she works for. Her promotion to Head of Legal has coincided with the scales falling from her eyes. The drama is a gripping reminder that “new” energy companies are just as capable of the same old dirty tricks. This is neatly summed up in the character of the CEO “Sander”, who makes a great show of cycling through London to a tv interview lauding him as the next big thing. On every other occasion, his mode of travel is a chauffeur driven S-class Mercedes. Could it happen in Scotland? Of course it could. Both dramas are available on catch-up on the i-player and conclude next week.
History made in Parliament House with the appointment of Lady Dorrian as Lord Justice Clerk, the first woman to hold one of the two most senior judicial appointments in Scotland.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.