Corroboration abolition opposed

Lords Cullen and Hamilton have given separate interviews making public their opposition to the Scottish Government’s proposed abolition of the requirement for corroboration in criminal trials in Scotland.

I find it interesting that they gave separate interviews, each one supporting the other and lending it increased weight and credibility. Wait a minute!  Were these two senior judges actually acting out the concept of corroboration for us? If so, it’s probably because they consider that we might benefit from visual aids. Next up – corroboration, the interpretative dance!

Posted in Criminal Law, News, Scottish Government | Leave a comment

Scotland’s Future – Absolvitor’s Questions Answered

Español: Composición del Reino Unido en el Fes...

Español: Composición del Reino Unido en el Festival de la Canción de Eurovisión (Photo credit: Wikipedia)

I have just finished a cursory scan of the White Paper “Scotland’s Future” which (at long last) answers some of the fundamental questions raised by this website answered:

Q590. There will be no change in the constitutional position of the Church of Scotland.  A real shame.  As a disestablishmentarianist, I am strongly in favour of severing all legal ties between church and state.  For a brand new state to begin by entrenching one denomination in preference to others is a bad idea.  Repeal the Church of Scotland Act 1921.

Q474. Scotland will still get to participate in the Eurovision Song Contest – although prequalification will probably be lost.  Scotland has no great track record in reaching the knockout rounds of international competitions, but I couldn’t care less about Eurovision, so no biggie here!

Q219. Qualification for the Scottish rugby team will be unaffected, but crucially there is no word on whether the name of the British & Irish Lions would change post-independence. WHAT ARE THEY TRYING TO HIDE???

Posted in International Law, News, Scottish Government | Tagged , , | 3 Comments

Syria, Chemical Weapons and International Law

Organisation for the Prohibition of Chemical Weapons

Organisation for the Prohibition of Chemical Weapons

After the UK Parliament narrowly voted against possible military intervention in Syria as part of a response to its recent chemical weapon use, I thought I would have a look at what the law says on the issue.

So, was the vote a “disgrace” (M. Gove) or should the UK pursue “other ways to put pressure on President Assad” (E. Milliband)?

Chemical weapons are one of those rare issues where there is essentially no argument at an international level.  Even those countries which stubbornly hold onto their nuclear weapons (like, um, us) are in agreement that chemical warfare is beyond the pale.

The current prohibition is found in the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction; or the Chemical Weapons Convention (CWC) for short – it came into force in 1997.  189 nations have ratified the Convention – approx. 98% of the world population.

Helpfully, Article XII of the CWC is titled “Measures to Redress a Situation and to Ensure Compliance, Including Sanctions” and it sets out the following:

1. The Conference shall take the necessary measures, as set forth in paragraphs 2, 3 and 4, to ensure compliance with this Convention and to redress and remedy any situation which contravenes the provisions of this Convention.  In considering action pursuant to this paragraph, the Conference shall take into account all information and recommendations on the issues submitted by the Executive Council.

2. In cases where a State Party has been requested by the Executive Council to take measures to redress a situation raising problems with regard to its compliance, and where the State Party fails to fulfil the request within the specified time, the Conference may, inter alia, upon the recommendation of the Executive Council, restrict or suspend the State Party’s rights and privileges under this Convention until it undertakes the necessary action to conform with its obligations under this Convention.

3. In cases where serious damage to the object and purpose of this Convention may result from activities prohibited under this Convention, in particular by Article I, the Conference may recommend collective measures to States Parties in conformity with international law.

4. The Conference shall, in cases of particular gravity, bring the issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and the United Nations Security Council.

The eagle-eyed among you will notice the lack of a mention of targeted missile strikes – even on humanitarian grounds. Article XII(4) does include “in cases of particular gravity” a reference to the UN Security Council, which could include military action in extreme cases – but only as approved by that body.

Posted in International Law, News | Tagged , , , | Leave a comment

Falkland Islanders “Better Together”

Coat of Arms of the Falkland Islands

Earlier this week, the denizens of the Falkland Islands voted by an overwhelming majority to remain as an overseas territory of the United Kingdom.  This result was not unexpected, but are there any lessons to be learned for our own constitutional referendum in 2014?

The wording of the referendum question is, of course, all important. Section 5(2) of the Referendum (Falkland Islands Political Status) Ordinance (No 16 of 2012) requires the Governor (N. R. Haywood C.V.O.) to take reasonable steps to ensure that the question to be asked is “objective, unambiguous and easy to understand.”

The terms of the preamble and the question itself was set out in the Referendum on Political Status (Question) Order 2012, as follows.

“The current political status of the Falkland Islands is that they are an Overseas Territory of the United Kingdom. The Islands are internally self-governing, with the United Kingdom being responsible for matters including defence and foreign affairs. Under the Falkland Islands Constitution the people of the Falkland Islands have the right to self-determination, which they can exercise at any time. Given that Argentina is calling for negotiations over the sovereignty of the Falkland Islands, this referendum is being undertaken to consult the people regarding their views on the political status of the Falkland Islands. Should the majority of votes cast be against the current status, the Falkland Islands Government will undertake necessary consultation and preparatory work in order to conduct a further referendum on alternative options.

“Do you wish the Falkland Islands to retain their current political status as an Overseas Territory of the United Kingdom?”

The question is very much skewed in favour of the status quo, I suppose.  It should also be noted that media in the Falklands could fairly be described as “staunchly Unionist” in character.  The scheme is also one of a two referendum approach in the event of a departure from the status quo – the first to establish the principle, the second on the detail of that proposal.  The Scottish Government have indicated that Scotland will be taking a one referendum approach to constitutional change.

There were only three people on the islands who voted against the current political arrangements – who will presumably now be rounded up and fed to the penguins.  Such an emphatic result – in either direction – seems unlikely in Scotland’s case, but we would be pleased to receive the glowing report from the international observers:

“It is our finding that the Falkland Islands referendum process was free and fair, reflecting the democratic will of the voters of the Falkland Islands,” said Brad Smith, the Head of the International Observation Mission. “The international observation mission has concluded that the voting process was executed in accordance with international standards and local laws. The process was technically sound, with a systematic adherence to established voting procedures.”

Argentina has been quick to denounce the poll as meaningless and continues to press its claim to “Los Islas Malvinas”. Whatever the result of Scotland’s vote, it is sure that it will not end the debate.

Posted in Constitutional Law, News | Tagged , , , | Leave a comment

Human Rights for the Commonwealth

Flag of the Commonwealth

Flag of the Commonwealth

So, the Queen today signed the new Commonwealth Charter, which for the first time in its 64 years history sets out a common vision, values and aims for the organisation, which represents one third of the world’s population.

The document includes the following:

“We are committed to the Universal Declaration of Human Rights and other relevant human rights covenants and international instruments. We are committed to equality and respect for the protection and promotion of civil, political, economic, social and cultural rights, including the right to development, for all without discrimination on any grounds as the foundations of peaceful, just and stable societies. We note that these rights are universal, indivisible, interdependent and interrelated and cannot be implemented selectively.

“We are implacably opposed to all forms of discrimination, whether rooted in gender,
race, colour, creed, political belief or other grounds.”

Note, in particular, the commitment to “other relevant human rights covenants” and that human rights “cannot be implemented selectively”. Doesn’t that undermine rather the recent statements from UK Government Ministers about wanting to withdraw from the European Convention on Human Rights? Or perhaps the plan is to withdraw from the Commonwealth altogether as well?

Posted in Human Rights, News, Politics | Tagged , , , , | Leave a comment

Marriage and Civil Partnership (Scotland) Bill

English: A woman makes her support of her marr...

English: A woman makes her support of her marriage, and not civil unions, known outside the Mormon temple at New York City’s Lincoln Center. Photographer’s blog post about this photo and the protest. (Photo credit: Wikipedia)

The Scottish Government have published their consultation on the draft Bill to introduce same sex marriage in Scotland.  The draft Bill is called the Marriage and Civil Partnership (Scotland) Bill and it will be pored over in great detail, no doubt.

As you may know, my principle objection to the introduction of same sex marriage is that it will ruin the film “Some like it hot” for future generations…

Anyway, the Bill came about – in part – following a successful “equal marriage” campaign.  So it is ironic that the Bill ushers in a era of no fewer than 9 distinct legal forms of marriage or partnership:

  1. religious marriage (heterosexual);
  2. belief marriage (heterosexual);
  3. civil marriage (heterosexual);
  4. religious marriage (same sex);
  5. belief marriage (same sex);
  6. civil marriage (same sex);
  7. religious civil partnership (same sex);
  8. belief civil partnership (same sex);
  9. civil civil partnership or “civil registration” (same sex).

… with slightly different rules and requirements for each.  Hardly “equal” is it?

It is only a couple of hundred years since the state took any role in marriage at all.  Is there really any legitimate role for government to define these 9 types of relationship as more worthy of state recognition than others?  If there must be some state involvement, let’s have a single tax/inheritance agreement which people of any gender or sexuality can enter into and leave individuals and their religious bodies (if any) to celebrate their love and commitment together in whatever way they please – no legislation needed for that surely?

I am in favour of a strict separation of church and state, so let’s not have priests presiding over a civil tax and inheritance contractual relationship, and leave that to the registrars.

Posted in Discrimination, Family Law, News, Scottish Government | Tagged , , , | 1 Comment

Court Service’s Online Makeover

SCS Website

Screenshot from the new, improved Scottish Court Service website

I note that the Scottish Court Service has indulged in an online makeover.  As far as I can make out, the content remains the same.  The presentation and navigation is much improved, although I don’t really care for the automatic rollover expanding navigation bars at the top of each page.  Still, you can’t have everything!

Posted in Scottish Court Service, Website Reviews | Tagged | Leave a comment

DLA Piper’s Glasgow office under threat

Glasgow Coat of Arms

The firm that never grew?

DLA Piper is thinking about closing its Glasgow office following a review of UK operations.

A DLA Piper spokesperson said:

“Following a comprehensive review of our UK business designed to ensure that we are operating in a manner, in the locations, and across the practice areas that support both our strategic objectives and the needs of our clients, we have begun a period of consultation in the UK that will consider the possible closure of our Glasgow office, the closure or divestment of our defendant insurance practice and the consolidation into one location of our current multi-site document production unit.”

I think this means that the Glasgow office, which has 85 employees including 10 partners, isn’t making enough money. Those affected will be subject to a consultation process to begin on 28 November and conclude “early in the new year”.

The possible redundancy package is said to include an “enhanced scheme that will be discussed with employee representatives” or – if staff are very unlucky – there could be transfers to Edinburgh.

DLA Piper puts 251 in consultation across UK as firm mulls Glasgow closure

Posted in Edinburgh, Glasgow, Law Firms | Tagged | Leave a comment

Focus on alcohol

Scotch Whiskey at the Pub

Scotch Whiskey at the Pub (Photo credit: cobalt123)

So, somewhat inevitably, the Scottish Government‘s minimum alcohol pricing laws have been challenged by the booze industry.

Specifically, the Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine industry and trade are petitioning for judicial review of the Alcohol (Minimum Pricing) (Scotland) Act 2012.

The basis of the challenge to the Act is on two grounds:

  1. the Act is outwith the legislative competence of the Scottish Parliament, and
  2. that there is no evidence for the proposition that imposing minimum pricing would reduce harmful consumption of alcohol or improve public health.

The judicial review was heard at the end of October, but with a decision yet to be issued, but in this decision by Lord Hodge the charity Alcohol Focus Scotland have been permitted to intervene in the case in the public interest.

Scotch Whisky Association and Others, Petitioners 2012 CSOH 156

The court allowed AFS to intervene by way of a written submission (not exceeding 5,000 words) and granted an order which protected them from liability to expenses – on the basis that they would not intervene at all unless they had no risk of an award of expenses being made against them.

AFS receive substantial funding from the Scottish Government and so it was argued by the petitioners that they were not truly independent.  However, they indicated that did not intend to spend grant income on the intervention, rather they would spend money raised by charitable donations – and only £3,000 at that.  This reassurance was enough for Lord Hodge.

It remains to be seen if the intervention will have an impact of the final decision, but my prediction is that the petition will fail and then on to the Inner House.  Let’s see…

Posted in Court of Session, Scottish Government | Tagged | 2 Comments

Church of (an independent) Scotland – Part 3

Logo of the Church of Scotland.

Logo of the Church of Scotland. (Photo credit: Wikipedia)

First of all, sorry about the gap in posting.  I’m going to try and post a bit more often now.

In my absence, the Scottish and UK Governments have agreed the “Edinburgh Agreement” which will allow a referendum on independence to take place in 2014.  And while there has been recent controversy about the impact of independence on EU membership or the nuclear detergent currently located in Faslane, near Rhu; the major issue for this blog remains that of institutional religion.

Previous posts have tracked the lack of a reply to my very reasonable question to the Scottish Government – in the event of an independent Scotland, what (if any) will be the constitutional position of the Church of Scotland.  Previous readers will know that the Kirk has an interesting relationship with the state, guaranteeing some independences but still entailing some fairly close ties between Church and State.  They will also know my own personal preference for severing all ties.  I am (as I delight in typing) a disestablishmentarian!

It seems, however, that I was going about things all wrong.  What I ought to have done is make some big splashy headlines across BBC Alba about “provoking God”.  That is the approach taken (back in June) by Rev Allan MacColl of the Free Presbyterian Church of Scotland.  The Treaty of Union currently guarantees Protestant religion and Presbyterian church government in Scotland, and Rev. MacColl raised concerns that a new independent Scotland, involving – necessarily – a change in constitutional arrangements puts that position at risk.

Education Minister Dr. Allan, stated – with clarity that the government e-mail has not provided this website (!) – “the SNP has no plans to alter the present role of the established church upon independence, and is respectful of the role of religion in Scotland.”

This has passed without too much comment, but I wonder whether this is, in fact, compatible with the liberal, multicultural Scotland we might plan for ourselves. Being respectful of the role of religion in Scotland is one thing, but in drafting a new constitution for Scotland is the SNP really setting forth a proposal that the Church of Scotland be the established religion of that new state?  And, if that is what is being said, will the people of Scotland be in favour of it to the same extent?  And, does it really matter any more?  As Brian Taylor of the BBC observed: “Few, I suspect, will fret about the establishment or otherwise of the Kirk. Fewer still, I suspect, will alter their views on independence on the basis of advice from the Free Presbyterian Church.”

Posted in Constitutional Law, Ecclesiatical Law, Scottish Government | Tagged , , , | 8 Comments