Victims of crime

Photo by Cristian Newman on Unsplash

Crime is a hugely emotive issue – particularly so for the victims and their families. It is important to remember, however, that the primary purpose of the criminal justice system is to punish offenders who break the collective rules of society as a whole. It is the State which takes vengeance on behalf of the community or society. It is not about the individual rights of victims and, as such, we have a public system of prosecution in Scotland. As discussed in Chapter 1 of Introductory Scots Law, the State is extremely unwilling to allow private prosecutions to proceed and these remain very rare in practice.

In two previous Blogs (“Commit the crime, do the time” published on 4 March 2019; and “Life should mean life?” published on 22 March 2019), I discussed the issues of sentencing by the Scottish criminal courts and, specifically, what exactly a life sentence entails.

I now want to turn my attention to the matter of prisoners making an application to the Scottish Parole Board for release.

The Parole Board is a statutory Tribunal independent of the Scottish Ministers.

Should the victims of crime or their family members have a say in whether the Parole Board decides that a prisoner ought to be released?

This issue has received some media attention because, on 27 March 2019, the Scottish Government closed its Consultation into the Parole system (Transforming Parole in Scotland).

A link to the Consultation can be found below:

https://www.gov.scot/publications/consultation-transforming-parole-scotland/

The Faculty of Advocates responded to the Consultation and agreed, with certain reservations, that the opinions of victims should be taken into account at parole hearings, but on a limited basis and within clear terms of reference.

Essentially, the Faculty believes that any input from victims in parole proceedings should be restricted to the submission of a Victim Personal Statement which would be considered by the Board. The Faculty had misgivings about allowing victims or their families to attend parole hearings and for the Board to release detailed reasons for its decisions.

As the Faculty noted, the primary purpose of the Board “is assessment of risk, and that should remain central in consideration of any reform.”

A link to the Faculty’s response to the Scottish Government’s Consultation can be found below:

http://www.advocates.org.uk/media/3060/final-faculty-response-28-march-2019-3.pdf?utm_source=Scottish+Legal+News&utm_campaign=74a64823a5-EMAIL_CAMPAIGN_2019_04_01_08_23&utm_medium=email&utm_term=0_07336e1dbf-74a64823a5-66775629

Conclusion

The response by the Faculty of Advocates to the Government’s Consultation is unlikely to please everyone, but it does recognise that victims of crime and their families have a role to play (albeit a somewhat limited one). As the Faculty, critically, argues the role of the Parole Board is to assess the risk to the public of releasing a prisoner from incarceration. The opinions of the victims and their families must necessarily take second place here.

Copyright Seán J Crossan, 2 April 2019

The shameful secret: the vegan butcher

Photo by Max Delsid on Unsplash

Readers of this Blog will be aware of several, previous entries discussing whether veganism could be considered as a philosophical belief capable of protection in terms of the Equality Act 2010.

The London Employment Tribunal will decide later this year if veganism as a belief system should be a legally protected characteristic (see Casamitjana v League Against Cruel Sports lodged in 2018).

What about an individual who has decided to become a vegan? Could this conflict directly with his occupation? BBC Scotland reported on such a story about a butcher who had a secret – he had become a vegan. It sounds like an April Fool joke, but apparently it’s completely true:

The butcher who went vegan in secret

Brian Kavanagh worked in the meat industry for about 15 years before becoming vegan

Copyright Seán J Crossan, 1 April 2019

National Minimum Wage Increase

Photo by Philip Veater on Unsplash

On 1 April 2019, many workers will see an increase in the National Minimum Wage rates (set by the Low Pay Commission and adopted by the UK Government).

As discussed in one of last Friday’s Blogs (The Living Wage), the National Minimum Wage rate for those aged 25 or over is not the same thing as the real Living Wage championed by the Living Wage Foundation, and adopted by many employers.

Minimum wage rates rise, but bills go up too

Two million UK workers on minimum wages receive a pay rise – but household bills have also increased.

Copyright Seán J Crossan, 1 April 2019

Segregation

Photo by Jeff Qian on Unsplash

The word segregation has very negative associations and we often think of the American Deep South before the victory of the Civil Rights’ Movement in the 1960s. In more recent times, we think of Apartheid era South Africa and its official policy of segregating the different racial groups.

Segregation on racial grounds would constitute direct discrimination in terms of the Equality Act 2010.

In its code of practice, the Equality and Human Rights Commission has previously used the following example of segregation which would be unlawful:

Example

A British marketing company which employs predominantly British staff recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues that they have an unofficial policy of seating the Polish staff separately from British staff so that they can speak amongst themselves in their native language without disturbing the staff who speak English. This is segregation, as the company has a deliberate policy of separating staff because of race.

A story (first reported by The Guardian) focused on segregation at a housing development in England. The developers were not prepared to allow housing association tenants on the site to have access to the recreational facilities. Only those individuals who had purchased properties at the development were entitled to make use of them.

On the face of it, this may be another example of the (social) class divide in the UK and no amount of legislation has managed to eradicate this problem. That said, a deliberate policy of segregation as operated by the developers might be capable of legal challenge if it could be demonstrated that the policy was leading to indirect discrimination in connection with a person’s protected characteristics.

I can’t help wondering if the developer carried out an equality impact assessment study before implementing the policy? Indirect discrimination, of course, occurs when an individual or an organisation operates a policy, criterion or practice (PCP) which has a disproportionately adverse effect on a certain group of people.

In a previous Blog (Indirect Discrimination published on 21 February 2019), I discussed this form of discrimination in relation to a story from New York.

It may be the case that a higher proportion of people from minority ethnic groups or non-white British citizens or EU nationals may be tenants of the rented accommodation at the development. We could also have more single parent families living in the rented properties who are headed by a female.

Several of the tenants are looking into the possibility of raising a legal challenge. Although, by the time that the story had gained national publicity, the developer was reconsidering its position.

Links to the story can be found below:

https://www.theguardian.com/cities/2019/mar/25/too-poor-to-play-children-in-social-housing-blocked-from-communal-playground

U-turn over ‘segregating’ children at London housing development

Postscript

In July 2019, the UK Government announced plans to introduce legislation in England which would effectively put an end to the practice by developers of having separate entrances and facilities (in effect segregation) for private owners and public sector tenants living in housing developments.

In Scotland, housing policy falls within the legislative powers of the Scottish Parliament.

A link to the story about the proposed legislation as reported by the BBC can be found below:

Ministers pledge to end ‘poor doors’ in new build housing

Copyright Seán J Crossan, 1 April and 22 July 2019

TUPE for lawyers

Photo by Melinda Gimpel on Unsplash

An interesting story by BBC Scotland about the demise of the well known Glasgow/Edinburgh law firm, Morisons Solicitors LLP. The story primarily concerns aspects of the transfer of an undertaking.

The majority of staff at Morisons are having their employment transferred: Blackadders Solicitors have agreed to take over the Glasgow operations and Thorntons will take over the Edinburgh side of the business.

The movement of former Morisons’ staff to their new employers will, of course, be governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006. This means that the employees in question will have their employment and their core terms and conditions of employment protected by their new employers.

The prospect of staff being made for redundant, as a result of the collapse of Morisons, is not imminent for the time being.

A link to the story can be found below:

Some jobs saved after administrators appointed at law firm

The business of Morisons LLP, which has offices in Glasgow and Edinburgh, will be taken over by two firms.

Copyright Seán J Crossan, 31 March 2019

The Gender Pay Gap

Photo by Suad Kamardeen on Unsplash

According to data released by the UK Government’s Equalities Office, the gender pay gap is still depressingly wide in 2019. Yes, this is depressing given the fact that, nearly 50 years ago, the Equal Pay Act 1970 was passed into law (although it wasn’t brought into force until 1975). The law on equal pay is now, of course, contained in the Equality Act 2010. It is also an area which has also been heavily influenced by EU Law.

Saturday 30 March 2019 was the final date for public sector organisations (employing over 250 people) to submit data on their gender pay gap to the UK Government. Private companies have until 4 April 2019 to submit this information. Thousands of organisations have left this to the last minute or failed to submit the information at all.

The gender pay gap problem is particularly acute in the UK university sector as the BBC reported today:

Big university Gender Pay gap revealed

https://www.bbc.co.uk/news/business-47723950

The BBC article contains a useful link allowing employees to calculate the pay gap at their organisation.

On Friday 29 March 2019, The Guardian reported that the gender pay gap amongst male and female graduates is widening (so not a positive picture overall):

Graduate gender pay gap is widening, official figures reveal

https://www.theguardian.com/education/2019/mar/29/graduate-gender-pay-gap-is-widening-official-figures-reveal

Copyright Seán J Crossan, 30 March 2019

Happy Brexit Day!

Photo by Kevin Grieve on Unsplash

Brexit Day: 29 March 2019

Something really seismic was going to happen at 2300 hours today (Friday 29 March 2019). Brexit!

Major spoiler alert:

Just in case you weren’t aware about the worst kept secret in UK politics: Brexit (the UK’s withdrawal from the European Union) isn’t happening today.

Section 20 of the European Union (Withdrawal) Act 2018 states that “exit day” should be interpreted as meaning 29 March 2019 at 11.00 p.m. Section 1 of the Act explicitly repeals the European Communities Act 1972 which made this country a member state of the European Communities from 1 January 1973.

I have deliberately avoided writing about Brexit (except where it relates to incidental matters covered in earlier Blogs) because no one knows what is going to happen.

This Friday afternoon, Prime Minister Theresa May’s third attempt at holding a meaningful vote on part of the withdrawal agreement she negotiated with the EU has (once again) hit the buffers. The House of Commons has rejected the Prime Minister’s motion by 344 votes to 286.

The legal position

What does this situation actually mean?

The UK remains a member state of the EU (for how long who can say?).

From a legal point of view, the UK will continue to be subject to EU law and policy – as much as any other of the 27 member states.

We should be very clear: the withdrawal agreement, which is causing Prime Minister May all sorts of nightmares, is merely the terms of the divorce. The future (trading) relationship between the UK and the EU is still to be worked out. Good luck with that – although Liam Fox MP, the International Trade Secretary did assure us that this would be the easiest trade deal in history:

https://www.theguardian.com/politics/2017/jul/20/liam-fox-uk-eu-trade-deal-after-brexit-easiest-human-history

In any event, EU law, as a source of Scots Law, was never going to disappear overnight even if the UK Government had managed the process of Brexit successfully. The reason for this is that much of EU Law is hardwired into the Scottish and English legal system. Admittedly, the European Union (Withdrawal) Act 2018 did attempt to address this by carrying over existing EU Law into domestic legislation. The Scottish Parliament also introduced its own Continuity Bill to deal with Brexit (the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill), but this has not received Royal Assent due to a successful legal challenge by the UK Government.

It would have been sheer stupidity for the UK to withdraw unilaterally from EU Law on Brexit Day. What would have been the law relating to such diverse areas such as consumer rights, employment rights, the environment and equality? Instead of legal certainty, there would have been chaos (well more chaos than is currently the case).

The continuity provisions of the EU (Withdrawal) Act 2018 deal with the problem of direct EU Law such as Regulations and Decisions (secondary legislation) which are already in force on Exit Day. These legislative acts will continue to form part of the legal terrain in the UK until such time as they were either retained (if so desirable) or repealed (if no longer desirable).

An example of this is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (better known as the General Data Protection Regulation) which came into force in the UK on 25 May 2018. This very important legislative instrument will almost certainly survive Brexit for the time being.

The General Data Protection Regulation is also an interesting example of the well established legal principle of the supremacy of EU Law over domestic law in the UK (or any other member state for that matter). The Regulation was passed on the 27 April 2016 – nearly two months before the Referendum of 23 June 2016 – and implemented across the EU member states on 25 May 2016 – nearly two years after the Referendum.

Depending of course on the shape of the UK’s future relationship with the EU, it may be the case that, despite Brexit, EU Law may continue to have some influence in this country.

For an example of a country which is not an EU member state, but still has to implement certain EU Laws, please see a link to an article below:

Brexit: Can Norway say no to the EU?

Nick Boles MP says Norway refused to adopt an EU directive. Is he right?

EU Directives

Directives, on the other hand, present something of a more difficult problem.

The sheer task of dealing with the impact of EU Directives is truly staggering. According to the House of Commons Research Library, in 2016, there were 900 extant European Directives – the vast majority of which had been transposed into the legal systems of the UK:

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7943

These legal principles contained in these Directives (come Brexit) will not simply vanish into thin air. They have introduced to Scots Law primarily by way of Acts of Parliament and UK statutory instruments. The courts have also played a role in ensuring that Scots Law (and English/Welsh/Northern Irish Law) complies with the principles contained in Directives (think of Equal Pay cases from the 1980s).

The Equality Act 2010 is one such example. Its provisions cover the following matters:

  • Age discrimination
  • Pregnancy and maternity discrimination
  • Race discrimination
  • Religion and belief discrimination
  • Sexual orientation discrimination

The general prohibition concerning these types of discrimination were originally contained in European Directives and decisions of the Court of Justice of the European Union.

We also have very specific statutory instruments which implement the objectives of Directives:

  • The Working Time Regulations 1998
  • The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  • The Fixed-Term Temporary Employees (Prevention of Less Favourable Treatment) Regulations 2002
  • The Information and Consultation of Employees Regulations 2004
  • The Transfer of Undertakings (Protection of Employment) Regulations 2006
  • The Agency Workers Regulations 2010

In relation to consumer law, the following examples of legislation have been heavily influenced by EU Law:

  • The Consumer Credit Act 1974
  • The Consumer Protection Act 1987
  • The Consumer Protection from Unfair Trading Regulations 2008
  • The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
  • The Consumer Rights Act 2015

Conclusion

This is not a pro or anti Brexit article. My point is that it will not be easy for any future UK Parliament to eradicate, depending on your political view) (the virus?) of EU Law from the Scottish legal bloodstream. Taking back control will involve a lot of legislative time being expended to this end. We only have to look at Brexit and its consequences have engulfed our law-makers since the Referendum was held on 23 June 2016.

Furthermore, for the last 46 years, Scots lawyers have become accustomed to the application of EU legal principles in the exercise of their professional duties. Quite simply, for many such individuals, they will have been dealing with EU legal rules for the entirety of their careers. I confess: I have never known anything else.

The transformative nature of EU Law was recognised as far back as 1974 by the famous English judge, Lord Denning MR in HP Bulmer Ltd and another v J Bollinger SA and others [1974] 2 ALL ER 1226.

But when we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute. The governing provision is s 2(1) of the European Communities Act 1972. The statute …is expressed in forthright terms which are absolute and all-embracing. Any rights or obligations created by the treaty are to be given legal effect in England without more ado. Any remedies or procedures provided by the treaty are to be made available here without being open to question. In future, in transactions which cross the frontiers, we must no longer speak or think of English law as something on its own. We must speak and think of Community law, of Community rights and obligations, and we must give effect to them. This means a great effort for the lawyers. We have to learn a new system. The treaty, with the regulations and directives, covers many volumes. The case law is contained in hundreds of reported cases both in the European Court of Justice…We must get down to it.”

Postscript 🇪🇺🇬🇧

At a European Council meeting on 10 April 2019, the heads of government of the other 27 EU member states agreed to give the UK an extension to Article 50 until 31 October 2019.

A short video of Donald Tusk, the President of the European Council, announcing the Brexit extension can be found below:

A link to the EU’s response to Brexit can also be found below:

https://www.consilium.europa.eu/en/brexit/

Copyright Seán J Crossan, 29 March 2019