LONDON-BASED FRENCH WRITER and broadcaster Phillipe Auclair, best known as a football journalist covering British and European leagues for newspaper and media outlets, is to be the guest speaker at the WS Society’s annual dinner at the Signet Library on 11 November. An all round renaissance man, Auclair is an urbane, wry and cultured observer of human affairs. The historic bonds between Scotland and Europe, particularly the “Auld Alliance”, are a strong theme of the dinner this year.
ON THURSDAY the WS/STEP Private Client Conference at the Signet Library featured a panel of the UK’s leading private client lawyers. The programme included a focus on international and cross border issues of succession.
ELSEWHERE IN THE UK a conference of different kind was also all about succession as new prime minister Theresa May addressed the Conservative Party conference in Birmingham. Conspicuous by their absence were the former Chancellor George Osborne and the former PM David Cameron.
THE CAMERON NAME was not out of the news, however, with the unwelcome headline this week “Law firm (sic) run by Cameron’s brother hit by £150,000 scam”. Alexander Cameron QC, older brother of the former prime minister has headed barristers’ chambers Three Raymond Buildings since 2010. It is understood that m’ learned friends unwittingly made three payments to fraudsters in a “false billing” scam, which would be embarrassing enough but the chambers “specialises in large-value fraud cases”. Quite. Perhaps a particularly immersive CPD session went wrong – something on “understanding the client perspective”?
PLUMBING HAS BEEN GOOD to Charlie Mullins, the “colourful” head of Pimlico Plumbers, who was also at the Tory conference this week. The former Tory donor is one of a number of businesspeople funding a high court case – expected to begin in the next week or so – questioning HM government’s legal advice that article 50 can be invoked without parliamentary approval. In her conference speech the PM confirmed that the attorney general Jeremy Wright QC would be resisting the legal challenge in the high court, prompting Mark Elliott, professor of public law at the University of Cambridge to tweet that May appeared to have “weaponised” the attorney general “in the service of democracy”. It also prompted a presumably unintentionally entertaining live appearance by Mullins on the Andrew Neil programme The Daily Politics on Tuesday. Mullins – who will be represented in the case by Mishon de Reya – was happy to post his appearance on Pimlico Plumbers tv channel and, if nothing else, he gave Neil a run for his money on the hairstyle front.
AUDIENCE APPETITE for true-crime documentaries shows no sign of declining. Rough Justice, broadcast on BBC 1 between 1982-2007 was a ground-breaking series which investigated alleged miscarriages of justice, ultimately securing the release of 18 wrongfully imprisoned people. Following the controversial cancellation of the programme in 2007 producer Louise Shorter established Inside Justice, a charity that harnesses the skills of lawyers, former police detectives and independent forensic experts to re-examine convictions they suspect could be unsound. Conviction: Murder at the Station (BBC iPlayer) followed Shorter and the Inside Justice team as they considered the case of Southampton postal worker Roger Kearney, currently serving a life sentence for the 2008 murder of Paula Poolton, a woman with whom he was having an affair. As the reviewer in The Daily Telegraph commented “it made for edge-of-your-seat television, pulling us in with all the twists and turns of a story that might yet turn out to be stranger than fiction”.
“IN AMERICA, IN 1308, THEY WERE DRAWING BUFFALOS IN CAVES
Italian defence lawyer Walter Biscotti”
THE HORRIFIC MURDER of British student Meredith Kercher in Perugia, Italy in November 2007 quickly became one of the most sensational crime stories of the 21st century. New to Netflix this week is Amanda Knox where the American Knox, twice convicted and twice acquitted of the crime, appears with other key protagonists (including co-accused Raffaelle Solleccito), in Rod Blackhurst and Brian McGinn’s unsettling film about the case. Inevitably, the behaviour of Italian lawyers – especially prosecutor Giuliano Mignini – has attracted much criticism. “The Italian police and judiciary were guilty of grotesque incompetence, panic, misogyny and misplaced national pride” – The Guardian. Reaction in America at the time was apoplectic and Donald Trump, inevitably, was sure there was a simple solution (boycott Italy). None of this criticism then or now, however, has shaken Solleccito’s defence lawyer Walter Biscotti’s faith in the ultimate supremacy of Italian justice: “It bothered me that the American media lectured us about the law. This courthouse, in 1308, housed the first faculty of law in Europe. In America, in 1308, they were drawing buffalos in caves.”
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
#RETHINKHASHTAGS
TIMELESS RITUAL in the modern world at Parliament House this week, with the opening of the legal year marked in the Court of Session on Tuesday. Writers to the Signet were well represented in court alongside other members of the College of Justice to hear the Lord President Lord Carloway announce a major change to the Court of Session timetable. The traditional three court terms of the legal year will be effectively abolished from the start of the legal year 2017-18, the summer recess eliminated and two vacation periods of two weeks being observed at Christmas and Easter. The move will "allow greater flexibility in programming the works of the courts over the legal year”. Reflecting on the change, the Lord President remarked how change is often unseen, incremental, and only measured in retrospect. Sudden, wholesale change, he said, often doesn’t last. Twelve new silks were presented before the court adjourned to be followed by the customary procession of the judiciary and legal profession to St Giles’ Cathedral for the traditional service. Following the court administration reforms a few years back, the order of precedence for the procession was a source of some controversy, even a boycott on one occasion. At issue was the delicate question of who should and shouldn’t take precedence over the Faculty of Advocates. Happily the protocol appears settled again, at least to outward appearances, save, that is, for one thwarted manoeuvre spotted by the sharper eyed observer as the congregation left the service in order of precedence.
THE LEGAL CALENDAR was a great influence on fashionable Edinburgh society in Georgian times, as the BBC’s documentary New Town revealed. Socialites followed the great and the good in returning to the city for the resumption of legal business in the autumn. Marking the 250th anniversary of the competition launched by the city of Edinburgh to solve the overcrowding and squalor of the Old Town, the programme explained how Edinburgh became “the most perfect Georgian city on earth”. Edinburgh at the time was the intellectual capital of Europe thanks to the collection of scientists, philosophers, economists, academics and artists responsible for the Enlightenment. Ironically, many academics believe it was the nature of the overcrowded Old Town that did much to foster this explosion of ideas and creativity. The Signet Library and Courts complex are of course an anomaly in this project, being masterpieces of Georgian architecture within the Old Towns’ towering closes.
THURSDAY’S EMPLOYMENT LAW conference at the Signet Library was well attended. Chaired by Innes Clark WS of Morton Fraser, the event provided a round-up of what’s new in the sector. Shona Simon, President of the Employment Tribunals Scotland, explained the controversial reforms of the employment tribunal structure. Sean Jones QC tweeted his impression of the conference: “If I ever set up Talkadvisor.com I'll be giving the WS Society top marks”.
#REIMAGINEREGULATION is the down-with-the kids branding of the Scottish Legal Complaints Commission's consultation calling for urgent reform of the system for regulating and handling complaints against solicitors. SLCC's chief executive Neil Stevenson, formerly a lieutenant at the Law Society of Scotland, gave the campaign another push at the weekend, telling The Sunday Times that the existing system is “costly, complex and slow”. Arrangements are certainly labyrinthine, a product of inelegant compromise over the years, most notably the problematic distinction between service and conduct complaints. Insisting upon this distinction could be seen as inconsistent with enlightened thinking that in order to satisfy clients solicitors need to synthesise material and take an holistic approach. The best CPD develops the skills required to do this. An excessively legalistic attitude is likely to alienate a lay consumer, whether it comes from a lawyer, regulator or complaint assessor. No wonder that a study for Strathclyde University’s Centre for Professional Legal Studies in 2013 concluded that legalistic complaints handling would not serve the interests of consumers or command #CONSUMERCONFIDENCE
TO THE WORLD OF insolvency and corporate turnarounds and more bad press this week as a criminal trial at Southwark Crown Court revealed a world of dodgy bank transfers, dishonesty and fraud involving employees of Halifax Bank of Scotland (now part of Lloyds) and a turnaround consultancy. A “director of impaired assets” (and of impaired ethics, it appears) allegedly received kick-backs in the form of lavish hospitality, foreign travel and even sexual encounters with “high class escorts” in exchange for giving business to a consultancy who then fleeced customers for fees. The court heard Brian O’Neil QC describe how the employee “embarked on a deliberate, systematic and sustained campaign of unauthorised lending of bank money to those business customers within his portfolio which were effectively forced through his influence to engage in the services of [X]”. HBOS is reported to have written off £240 million as consequence.
WHAT PRICE the England national team’s football manager Sam Allardyce? The answer is £400,000 for four trips to the Far East to give 15 minute “keynotes” and a bit of chat in the bar afterwards. Once again the English Football Association finds itself signing a compromise agreement to dispose of another failed, and this time disgraced, manager. A sting by The Daily Telegraph recorded Allardyce telling undercover reporters masquerading as Far East investors how to circumvent rules forbidding third party ownership of football players, and making a number of ill-advised, off the cuff remarks for good measure. "Big Sam" left the FA with no choice other than to terminate his tenure after just one game. Still, he left for his Spanish villa this week with his 100% win record intact.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Planning wars
PLANNING LAW is always a good source of copy and this week has been no exception. One lawyer, Neil Collar, describing another lawyer, Colin Innes, as a legal “attack dog” certainly livened up the planning inquiry into tennis coach Judy Murray’s £37.4m Park of Keir scheme proposed for the outskirts of Dunblane in Perthshire. The revelation that one of the objectors, the enigmatic Arnbathie Developments, is a company with only one director, none other than Ann Gloag, one of the most wealthy people in Scotland, was made for the headline writers: “Judy Murray and Ann Gloag engaged in furious battle”, “It’s Murray v. Gloag”, etc. It is fair to say Innes did not appreciate the canine comparison, calling Collar’s questioning “completely, utterly outrageous and unprofessional”. Arnbathie Developments’ ambitions to build 129 “self-contained and discrete” houses on land nearby, were, according to Stewart MacGarvie, a town planner representing Gloag, nothing to do with her objection: “Our concern is the extent of this development on the green belt”. The inquiry has now ended and a decision is expected in the next few months.
KELPIES is the Scots name given to a shape-shifting water spirit that, according to legend, appears out of pools and lochs, most often in the form of a horse. Another apparition, however, mysteriously appeared beside the two famous Kelpie steel sculptures in Falkirk, described by Andy Scott, the artist who created the much loved work, as “a monstrous carbuncle masquerading as a fast food outlet”. The “Artisan Grill”, a recently arrived German-style fast food cabin, was finally refused retrospective planning permission by Falkirk Council on Monday and will now be removed. “Burger Off”, as the leader in The Times succinctly put it. Scott’s argument that the commercial value of the burger bar should not be allowed to interfere with the aesthetics of his creation is a debate that can be transferred to many developments, not least the proposed “walnut whip” hotel at the edge of the historic New Town in Edinburgh. Or indeed...
TAKE LOCH LOMOND and the Trossachs National Park which are also the centre of debate on the proper balance between business and the environment. Theme park operator Flamingo Leisure is the “preferred” (by Scottish Enterprise, that is) developer for a 49 acre site at Balloch for an “iconic”, “family-orientated” mixed use leisure development, including a “boutique” hotel, “glamping” pods and restaurants. News reports read like a glossary of developer-speak. Flamingo Land CEO Gordon Gibb was quick to reassure everyone that his company’s proposal would be a “different type of venture” from the company’s existing theme park and “zoo” in North Yorkshire. He claims that attractions would be suitable for a beautiful National Park setting, giving as an example unspecified “outdoor adrenaline pursuits”. Not everyone shares Mr Gibb’s enthusiasm for the project. An online petition against the planning proposal has been created and campaigners' question whether the proposal measures up against the sstatutory aims of the National Park: conservation, enjoyment of the special qualities of the locality, “sustainable” use of natural resources, and “sustainable” economic development. The proposal comes after a “Charente” – a community consultation – earlier this year. A planning battle looms.
NEXT WEEK’S Employment Law Conference at the Signet Library might come just in time for footballer and self-styled “borderline kamikaze pilot” Joey Barton. Barton was suspended by his employer, Glasgow Rangers, for three weeks following his alleged verbal assault on manager Mark Warburton and team mates during a de-brief in the wake of defeat by city rivals Celtic. Press comment suggests Barton’s four month career at Rangers may be over and that the enforced cooling off period will be used to negotiate an “amicable” parting of the ways. Employment law specialist Michael Briggs claims that Rangers will have to cut a deal to avoid embarrassing litigation. Barton’s career has been marked by controversy and a number of unsavoury incidents on and off the pitch. Arguably his signing itself was an accident waiting to happen. Some wonder if the new regime at Biro has learned any lessons from the high risk, high spending, tax avoiding era of David Murray when the club signed another serial delinquent, Paul Gascoigne. That strategy ultimately brought about Rangers’ insolvency and liquidation. Still, the latest publicity will do harm to sales of Barton’s autobiography published this week. The title? “No nonsense”.
THE BBC’s ROLE in Scottish national life is never far from the news just now. With that in mind, the Scottish setting for a four-part murder mystery, “One of Us”, proved particularly problematic. First, as one reviewer noted, it appeared to be set in a part of Scotland “where the accent hadn’t caught on”. Secondly, it featured possibly the world’s most unconvincing farmer (Jon Lynch), a man with no livestock, tractors, machinery or crops. Thirdly, in the course of the murder investigation, whole families were arrested, charged and released without the intervention of a single lawyer – even when they specifically asked for one. The BBC’s own magazine, Radio Times, acknowledged the drama “didn’t work. Or ring true. Or pass the credibility test”. All in all, only those subscribing to the “so-bad-it’s-good” view would regard this crime drama as anything but a waste of quality actors like Juliet Stevenson and Kate Dickie and stunning Highland scenery.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Crown, crime and cake
THE TALKING POINT around Parliament House this week is the “open letter” from the Dean of the Faculty of Advocates, Gordon Jackson QC, to his predecessor as Dean, the recently appointed Lord Advocate James Wolffe QC. After brief congratulations, Jackson wastes no time getting to the point: “Please allow others to make decisions. There is a perception...”
Debts, deals and dumping
The party’s over
THE ROYAL MILE returns to a semblance of normality this week after the fireworks on Monday to mark the close of the Edinburgh Festival. Walter took refuge on a tartan rug in the cellar for the fireworks. The Festival Fringe fills Parliament Square with people and a performance area right outside the Signet Library. The scene is awash with colour and clamour, thrilling for visitors, less so for those making their way daily to and from work. Walter is not a fan of jugglers shouting their life story. Now it is as if a particularly disorganised invading army has just departed the city, with a few stragglers and an early autumn wind whipping up the detritus. The legal scene around Parliament Square is still muted pending the ceremonial of the Opening of the Winter Session later in September. That will truly bring down the curtain on the summer.
TIME WAS CALLED on a different kind of party this week. Tech giant Apple was told to pay Ireland euros 13 billion (£11 billion) of back tax that would have been due but for a special tax deal adjudged by the EU to constitute unlawful state aid. Anyone who thought a “Double Irish” was an alcoholic drink now knows that, in fact, it is an exotic tax structure favoured by certain multinationals who seem to regard their economic impact per se as more than enough benefit for any country lucky enough to have them without the demeaning imposition of being taxed at the same rate as lesser beings. The Double Irish is an Apple tax cocktail, mixed with the connivance of the Irish government. The recipe goes like this: (1) mix up and stir all your sales across the EU and elsewhere and decant into a taxable Irish company; (2) reduce the mixture by siphoning off a hefty measure of royalties and fees into a second company deemed to be “stateless” (or, if you prefer, an offshore company in an ever more favourable tax haven); et voila (3) only a shot of taxable concentrate is left in the first company. According to the EU, Apple paid a maximum tax rate of 1% - in 2014 just 0.005% - compared to Ireland’s "normal" corporation tax rate of 12.5%. It is step (2) of the recipe that EU competition commissioner Margarete Vestager says does not correspond to any version of economic reality and that amounts to state aid. Step (1) is untouched by the ruling although many will find its relationship with reality just as unconvincing.
APPLE CEO TIM COOK is predictably outraged and has instructed City law firm Freshfields on the appeal. In a succession of outbursts Cook disingenously portrays the ruling as retrospective law and an affront to national sovereignty. It is neither. Less predictably, the Irish government is appalled at the prospect of being compelled to receive a sum equal to the entire annual cost of its national health service. In what would be an act of unprecedented national self-denial, the government may appeal the ruling, much to the outrage of Irish tax payers. As if one of the lowest corporation tax rates in the developed world was not incentive enough for inward investment. In a further twist, the US government says the ruling unfairly targets Apple despite its own frustration at Apple hoarding over $200 billion in cash reserves offshore in order to avoid paying US tax. What is genuinely perplexing, and disturbing, is why Apple felt it necessary and legitimate to adopt such an aggressive tax structure in the first place. If a “traditional” manufacturer and retailer had been exposed for doing so, consumers would have deserted it in droves. Apple’s share price hasn’t so much as quivered and it can easily afford the tax. Does the company not want to pay its way in the social orders in which it operates? Or are they so blinded by their own genius and the faux beneficence of their "cool" tech? What Apple sees as legitimate corporate strategy looks to many members of the public like greedy corporate hoarding. This cannot be good for the brand. Nor is their CEO's PR strategy playing well. The EU have followed due process and assess that Apple's tax liability should be more that the corporation (or its advisers) may have thought. Due process has been followed and there's a right of appeal. No corporation should be above the law. The EU's message to the Irish government and other member states is that state-sponsored financial doping is inimical to fair competition. Whichever way the appeal goes, surely the party is over for flagrant and excessive tax avoidance by global brands that depend upon consumer goodwill for success.
THE PARTY’S ONLY JUST BEGUN on Brexit with the news that EU personnel are up in arms at the news that former EU commissioner Manuel Barroso is to join the US investment bank Goldman Sachs to assist advising clients on Brexit. An online petition, organised by a group of EU officials, denounces Barosso for “irresponsible” and “morally reprehensible” behaviour by taking up the role shortly after the expiry of his gardening leave. They point to Goldman Sach’s involvement in sub-prime mortgage instruments and lending money to Greece before that country’s financial meltdown. The former Portuguese prime minister has certainly been on quite a “journey” ideologically, having allegedly been a Maoist as a student, he has ended up as an ex-EU commissioner advising on Brexit.
CLOSER TO HOME law firms have flirted over the years in the field of lobbying and public affairs. In Edinburgh, where once it was the formation of the Scottish Parliament that provided the spur, now it’s Brexit. That’s certainly the view of Pinsent Masons who this week announced the expansion of its public policy practice by appointing a former head of public affairs within the RBS banking group. Apparently clients are anxious to understand the implications of Brexit. They are not alone. Her Majesty's Government would like to know.
WITH SOME EXCEPTIONS lawyers prefer to stay out of the news and to avoid appointments to the board of their clients’ trading companies. Mike Ashley's trade mark lawyer, formerly head of brands at Sports Direct, is the subject of media attention over his role in the company that makes a profit from organising all Sports Direct’s international deliveries. The company is owned by Ashley’s brother which has raised eyebrows because Sports Direct had not disclosed its contract with the company as a related party transaction. The company says it receive advice that the appointment didn't have to be disclosed. Reports claim that the lawyer was the sole director of the company for six months after its incorporation until the appointment as a director of Ashley's brother, formerly Sports Directs’ head of IT. The latest story has fed into reports of shareholder unease about corporate governance at Sports Direct in the wake of allegations about the treatment of agency employees at its warehouse and retail operations. Those allegations resulted in Ashley’s memorable appearance before the House of Commons’ business and innovation select committee. There is no suggestion of any wrongdoing by anyone.
AS THE US PRESIDENTIAL ELECTIONS election moves towards the first debates between Hilary Clinton and Donald Trump later this month, events surrounding an earlier race for the White House are the subject of the film Truth (available now on streaming services). Starring Cate Blanchett as Mary Mapes, a CBS 60 Minutes producer, and Robert Redford as legendary anchorman Dan Rather, the true-life drama focuses on an event that, whilst notorious in the US, is less well known in the UK. With President George W Bush seeking re-election in 2004 many American news outlets were investigating the question of how the president avoided the draft in Vietnam. Documents made available to CBS appeared to provide a smoking gun: when the veracity of these military papers is called into question, the journalists are left examining fonts, kerning and typewriter evolution in an attempt to salvage their careers and reputations. Needless to say, lawyers are soon involved.
ANOTHER REAL-LIFE STORY is the subject of Serial the podcast which, as of June 2016, has been downloaded more than 100 million times. Journalist and presenter of the radio program This American Life, Sarah Koenig, investigated the 1999 murder of Hae Min Lee, an 18 year old high school student in Baltimore, and the conviction of Adnan Syed, her former boyfriend, who was found guilty of the crime and given a life sentence. Syed had always protested his innocence and there were questions about the performance of his lawyer, Christina Gutierrez, who was subsequently disbarred (with consent) in 2001 partly due to health complaints related to the effects of multiple sclerosis, the disease which eventually killed her in 2004. With the case now back in the news as a direct result of the Serial podcast, the programme is a riveting look at the US justice system.
YESTERDAY EVENING at the Signet Library a gathering of writers and football followers joined well known faces Stuart Cosgrove, Ian Rankin and others for the launch of Nutmeg, a quarterly periodical devoted to Scottish football. The venture is a celebration of the printed word and good writing. The first edition is stylishly designed and produced and a pleasure to hold and turn the pages. It was a terrific event, much enjoyed the company as evident from activity on Twitter. The WS Society is pleased to support Nutmeg and wishes editor Ally Palmer and the editorial team every success.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Trials, tribulations and tax
THE WHEELS OF JUSTICE TURNED FINALLY with the news that a federal court has overturned the murder conviction of Brendan Dassey, co-accused with his uncle, Steven Avery, of the murder of a 25-year old Autotrader photographer, Teresa Holbach, in Manitowoc County, Wisconsin on 31 October 2005. This is the notorious case made so by the Netflix documentary “Making a Murderer” featured elsewhere on this website. Dassey’s treatment at the hands of Manitowoc County’s sheriff department, by the County's public prosecutor, and by his original defence counsel, Len Kaschinsky, since de-certified as a public defender, made a mockery of concepts like a fair trial, the presumption of innocence and the burden of proof. The Netflix documentary, released as a ten-part series in December 2015, captivated and appalled an international audience with the scarcely believable treatment of two of its citizens by a country that claims to lead the free world. Now there is mounting speculation as to the impact the federal appeal court decision in Dassey’s case will have on Avery’s. A hero of Avery’s case at first instance was his former lawyer, Jerry Buting, who tweeted his reaction to the appeal court ruling: “Justice finally strikes”. If prosecutors do not re-file charges within 90 days, Dassey will be a free man. Avery remains imprisoned.
“JUSTICE FINALLY STRIKES”
THE LABOUR PARTY’S LATEST BRUSH WITH THE COURTS is over with the news that there is to be no appeal to the Supreme Court of the Court of Appeal’s decision to uphold the right of the party’s national executive committee to impose a retrospective “freeze date” to exclude from the leadership election members who joined the party after 12 January. The Court of Appeal found that party members did not have a “right” to vote but only the rights given to them under the rules which in turn gave the national executive committee power to circumscribe eligibility. (Jurisprudence-geeks might be put in mind of Wesley Newcomb Hohfeld, the early 20th century American jurist, who drew the distinction between what he called a “right” and a “privilege”.) The decision provoked fury from shadow chancellor John McDonnell who condemned the three appeal court judges, without any sense of irony, as “both wrong legally and democratically”. He also criticised the party’s general secretary for making the appeal, but not the party members who brought the case at first instance.
THE CONSERVATIVE PARTY too is the legal news with a summary released of Clifford Chance's report into allegations of bullying and improper behaviour among the party's "RoadTrip" flying squad of young campaigners at the last general election, one of whom committed suicide in September 2015. The law firm interviewed 62 individuals although 12 whom investigators particularly wished to speak declined to give evidence. The inquiry found flaws in the party's complaints procedure but cleared top brass of any knowledge of the bullying. It did reveal that former party chairman Grant Shapps regarded retaining the leader of RoadTrip at the time as a "calculated risk".
HM GOVERNMENT chose this week’s heat wave to issue a consultation on proposals to penalise lawyers, accountants and financial advisers – so-called “enablers” – advising on schemes found to be illegally avoiding tax. Penalties proposed could be as high as 100% of the tax involved. The consultation defines “enablers” as “those who design, promote and market avoidance” and “anyone in the supply chain who benefits from an end user implementing tax avoidance arrangements and without whom the arrangements as designed could not be implemented”. The small print admits of a carve-out for those not giving the tax advice (e.g., a lawyer following instructions to set up the scheme without advising on the tax aspects). Post-financial crash, post-Panama Papers, post-Google/Amazon/Apple-and-other-tax-controversies, post BHS insolvency, the morality of the hitherto sacred adviser/client relationship has come under increasing scrutiny. There is precedent in the shape of the money laundering regulations but now the focus is much wider: the social, economic and ethical responsibilities of professional advisers to the public weal. It’s a classic case of a shift in public mood challenging what were thought to be fundamental tenets of professional advice in the free market. The government also proposes to reverse the burden of proof, currently lying with HM Revenue & Customs, so that suspected tax avoiders would have to demonstrate that they took reasonable care to avoid errors in their tax returns. The Financial Times quotes the Institute of Chartered Accountants in England, in commendably restrained terms, perhaps aware which way the wind is blowing: “The government needs to be sure that any new rules are properly targeted only to tackle those advisers that promote aggressive tax schemes” – as opposed to reputable tax planning. It is going to be challenge to draft legislation to make this kind of distinction. It will also no doubt add a few more pages to the already voluminous letters of engagement and letters of representation expected of clients by the accountancy profession.
“THE GOVERNMENT NEEDS TO BE SURE THAT ANY NEW RULES... TACKLE THOSE ADVISERS THAT PROMOTE AGGRESSIVE TAX SCHEMES.”
A PERFECT STORM OF PROPERTY, PLANNING AND CHARITY REGULATION is brewing – or on the grill – near Falkirk. A “German-style” (meaning a great deal of varnished wood is involved) fast food cabin has appeared at one of Scotland’s landmarks, the 100 feet tall Kelpies at the Fourth and Clyde Canal. The Kelpies’ sculptor Andy Scott has complained to Falkirk Council about the “tacky” and “fake” Bavarian effort. Scott says: “It beggars belief that planning permission was ever given... The burger bar quite clearly affects how the public perceives the artworks. It is within clear sight from almost every angle as one approaches and views the sculptures”. The artist is threatening to instruct his lawyers to take formal steps to dissociate him from the site. The Falkirk Community Trust (FCT), a charitable arm of the Council that operates the site, who apparently gave permission to the improbably named “Artisan Grill”, have sidestepped the issue, saying that it a planning matter for the Council to settle. The prospect of so many potentially hungry visitors – over one million since the Kelpies were officially opened last summer – is clearly too tempting commercial prospect. FCT made the revealing statement “[t]hat the matter of the suitability for this operation of land use is a matter for the local authority, not FCT or the sculptor...” as if there is no place for any interests or considerations other than those recognised and ruled on by the planning system. This looks like an abdication of responsibility, to say nothing of the implicit assumption that land use is entirely a matter for local authority omnipotence. The issue is not straighforward: the stall, which appears to be a permanent construction rather than mobile, was refused retrospective planning but the operators have appealed. Meantime, it seems, they are free to trade. The Kelpies have yet to comment.
“THE BURGER BAR QUITE CLEARLY AFFECTS HOW THE PUBLIC PERCEIVES THE ARTWORKS”
THE WS SOCIETY’S LATEST SUMMER INTERNS – Hilary Sharkey, Emma Miller and Rory Swanson – are researching human rights and the Scottish Government’s legislation to assign a “named person” (e.g., health visitor or teacher) to every child in Scotland. The interns’ findings will be presented on Thursday 25 Aug at 3.00 pm. Open invitation. Last week’s intern presentation was on the legality of the Olympic ban on Russian athletes and, appropriately enough, one of the interns was Russian-speaking Regina Gabbasova who is studying law at Aberdeen University.
NETFLIX says it is “committed to pushing the boundaries of the documentary form”. Alongside a second series of “Making a Murderer”, the online streaming service will premiere at the Toronto Film Festival in September a new documentary on another controversial criminal case: American Amanda Knox was acquitted, after various retrials and appeals in the Italian courts, of the murder in 2007 of British student Meredith Kercher in Perugia, Italy. The case continues to fascinate and divide opinion and attracted more publicity earlier this year when the European Court of Human Rights granted Knox the right to pursue a case against the Italian state for violating her rights with an unfair trial and maltreatment during questioning. It remains to be seen whether fellow US citizen Brendan Dassey will seek redress for his treatment under US state and federal law.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Respite, recreation and revolution
SUMMER BRINGS RELIEF from the anguish and political upheaval of the Brexit referendum. Well, except for the Labour party, of course, for whom anguish and upheaval have become the norm. To these are added litigation with Labour’s national executive committee spending £250,000 on legal costs to appeal a High Court ruling overturning the committee's decision to exclude new members from voting in the current leadership contest between incumbent Jeremy Corbyn and challenger Owen Smith. The appeal hearing concluded yesterday before three Appeal Court judges. Their decision, although specific to the Labour party’s rule book, may have wider implications for contract law, particularly as it applies to the rules and processes of membership bodies. The judgement is expected by 3 pm today.
WALTER’S COMPANY ON HOLIDAY in Scotland made it inevitable that golf would impinge – or infringe – on an otherwise relaxing break. Rather like a rain cloud appearing in a Scottish summer sky. Walter has history with golf. This undoubtedly stems from an unfortunate incident several years ago during a summer’s day stroll on the fringes of a Fife coastal town popular with holidaying Edinburgh lawyers. An unfortunate misunderstanding, for that is all it was, arose when Walter “retrieved” a golf ball from what turned out to be a fairway, although to Walter the topography would be indistinguishable from a public park. Had Walter’s exuberance, albeit misplaced, been received with the good humour that might be reasonably be expected in the case of such an inadvertent error, the incident might have been forgotten. But this was a golf course. Walter has never got over the unforgiving, splenetic outburst to which he was subjected on that day. He tenses in the vicinity of golf course paraphernalia. A tee box or fluttering flag is enough to make him wary. His carefree behaviour on a walk along a Highland beach darkens in an instant when landscaping and distant figures in bright clothing signal the menace of a golf course. And so to the aptly named crofter Kenneth Hassell who is claiming £2m from Royal Dornoch links to give up his common grazing rights under 19th century crofting legislation over 93 acres, taking in five holes of the championship course. With the golf club valuing Mr Hassell’s rights at a mere £33,000, the gulf between the parties is described as “unbridgeable”. Ransom strip or par for the course? As local councillor Graham Phillips put it: “The law is the law and you have to abide it, but often an extremely expensive hobby can lead to unintended consequences”.
GOLF IS EVEN IN THE BUSINESS NEWS this week with global brand Nike’s surprise announcement that it is to stop producing golf clubs, bags and balls. In other words, everything that is essential to playing the game as opposed merely to looking the part in expensive apparel. Why so? Sales at Nike’s golf division have fallen 8%, the third successive year of falling sales. Nike is known for its mega-sponsorship deals, first with Tiger Woods and most recently with Rory McIlroy. The problem is that the sponsorship appeals to a dwindling market. Official figures indicate that participation in British golf had fallen from just over 1 million in 2008 to below 750,000 in 2015. Meantime, running, cycling, gym and fitness classes and swimming are attracting increasing numbers. Golf needs to attract more younger players. Nike will continue to sell golf clothing and shoes so leading players like Rory McIlroy will still be subjected to the indignity of pioneering new fashions like the “bullet proof vest-look” he sported at this year’s Open. This year’s unexpected headgear innovation is the lawyer’s favourite, the bulldog clip, as sported by American Phil Michelson to secure his cap at a windy Royal Troon this year.
JUDGES HAVE BEEN IN THE NEWS with the resignation of Lady Goddard, the New Zealand judge appointed on a size able remuneration package to chair the Independent Inquiry into Child Sex Abuse. This followed the earlier resignations of English judges Baroness Butler-Sloss and Dame Fiona Woolf on the grounds of potential conflict of interest due to their “establishment” links. Lady Goddard’s resignation came shortly after a report in the Times newspaper that she had spent three months out of the preceding year of her appointment out of the country in Australia and New Zealand. Lady Goddard’s resignation letter was a remarkably terse two liner. Stories have since surfaced in the press of alleged tensions within IICSA over Lady Goddard’s alleged manner towards team members and alleged limited knowledge of English law. It is not clear whether these are well-founded or simply motivated by hostility to a non-English outsider. The new chair is Professor Alexis Jay, an Edinburgh-born former social worker who has more than 30 years experience in child protection. Professor Jay has been on the IICSA since the start. House of Commons Home Affairs Committee Chair Keith Vaz welcomed the appointment: “Professor Jay is first chair of the inquiry without legal or judicial qualifications. I hope it will be fourth time lucky”.
THE BREXIT VOTE was one of those usually rare, but in recent times more frequent, examples of a public news story inducing the cycle of existential emotion normally reserved for personal, private life experiences: panic, resignation, assimilation. The horrific attacks on innocent people in Nice and elsewhere; the civil and proxy wars in the Middle East; the migrant crisis; the conflict in Ukraine; the prospect of the UK breaking up; global warming; the speed of technological change: these too individually and collectively have had a similar effect. There is a sense of the world moving into uncontrollable, unchartered territory. “T’was ever thus”, as the saying goes. The best prescription for this anxiety condition is to read some history such as Peter McPhee’s new study of the French Revolution, Liberty or Death (Yale University Press, 2016). This was a ferociously violent upheaval that shook the world, releasing frightening new ideas that today we take for granted. A lawyer was centre stage: Maximilien Robespierre.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Affairs of state
ROYAL WEEK in Edinburgh and the Signet Library was at the heart of proceedings, playing host to HM The Queen, accompanied by Prince Philip, The Duke of Edinburgh, Prince William, The Duke of Cambridge and Princess Anne, The Princess Royal, and other members of the Most Ancient and Most Noble Order of the Thistle. The Order is the highest order of chivalry in Scotland the occasion was the Order’s biennial Thistle Service at St Giles Cathedral. From early morning the Signet Library is a hive of activity as dressers from Ede & Ravenscroft set out the splendid costume of each Knight of the Thistle in the main salon of the lower library. A table is set aside for each Knight’s regalia: a green robe lined with white taffeta and tied with green and gold tassels; the star of the Order, worn on the left shoulder of the robe, depicting St Andrew, gold rays of glory around his head, wearing a green gown and purple coat holding a white star; a hat of black velvet with white feathers with a black egret or heron's top in the middle; and collar of gold depicting thistles and sprigs of rue, worn over the mantle. Amongst this ancient symbolism move the trappings of the modern state: press officers, photographers, military personnel, courtiers, Special Branch, police and, of course, sniffer dogs. The chink of glasses can be heard as catering staff set up for the drinks reception that takes place after the service. The Minister of St Giles, the Reverend Calum MacLeod, welcomed the congregation with a reminder of the historical significance of the place:
“Here John Knox confronted Mary Queen of Scots; here James VI argued about liturgy; here Oliver Cromwell preached. Here Parliament sometimes met. Here the Stone of Destiny rested on its return and here our Queen received the Honours of Scotland”.
The choir of St Giles’ sang most beautifully the work “Blessing” by the contemporary Welsh composer Paul Mealor. On returning to the Signet Library, Her Majesty was received by the Deputy Keeper of the Signet, Caroline Docherty WS, before signing the WS Society’s visitors’ book, the same one that the Queen signed for the first time on this occasion in 1953. Prince Philip joked that he hated signing with "a nib" pen but the WS Society’s fountain pen performed the job admirably. Princess Anne quipped that she had brought her own gold pen which indeed she had. Legal figures were much in evidence. The Keeper of the Signet, Lord Mackay of Clashsfern, Lord Hope of Craighead (former Deputy President of the UK Supreme Court) and Lord Cullen of Whitekirk (former Lord President) are Knights of the Thistle. The Lord Lyon King of Arms, Dr Joseph Morrow QC, was in attendance along with the heraldic officers, including Adam Bruce WS and John Stirling WS. This is truly one of Scotland’s magnificent royal occasions and one in which the WS Society and the Signet Library have played a part for as long as anyone can remember. There is timelessness about such occasions, the same ritual and symbolism repeated from generation to generation. Continuity in changing times.
“I CAN ONLY SAY THAT THE BABY IS BEING FIRMLY HELD AND THAT MY INTENTION IS THAT THE BABY SHOULD PROSPER.”
CONSTITUTIONAL ISSUES continue to dominate the news in the wake of the EU referendum vote to leave the EU. The Conservative government’s Brexit "crack unit" is to be headed by Oliver Letwin. It was put to the Cabinet minister at the Commons Foreign Affairs Committee that he’d been left to "hold the baby". Never one to shy from a metaphor, Letwin responded: “I can only say that the baby is being firmly held, and that my intention is that the baby should prosper, because I care about the baby in question. The baby is, in fact, our country”. Not everyone is convinced that the baby won't be lost with the bath water. The litter bins of St James Park will shortly be full of discarded Brexit "option papers". Letwin asserted this week that the royal prerogative could be used to invoke article 50 of the Treaty of Lisbon to trigger two years’ notice of the UK’s exit from the EU. He said this was “academic” because Parliament would have to vote to repeal the European Communities Act 1972, glossing over that such a vote would only be required two years after the notice had been given. Meantime, law firm Mishcon de Reya is first out of the traps with a court action asserting the contrary view that a vote of Parliament would be required to approve giving notice under article 50. Legal experts have also asserted that an article 50 notice once given could later be rescinded by the UK so giving notice does not of itself guarantee that Brexit will happen.
SCOTLAND’S FIRST MINISTER Nicola Sturgeon MSP this week invited EU diplomatic representatives to Bute House in Charlotte Square to discuss how the Scottish government could provide further reassurance to all EU citizens living in Scotland. The First Minister said it was "inhumane" of the UK government not to guarantee the rights of EU citizens living in Scotland to remain following the Brexit vote. She insisted that EU citizens who had come to the UK to make their lives here should not be treated as “a negotiating chip in a wider discussion with Europe" and pointed out that Britons living in the EU also faced an uncertain future. The EU diplomats included two Writers to the Signet, James Rust WS (Morton Fraser), and honorary consul of Portugal, and Frank Gill WS (Kennedys Scotland), honorary consul of the Netherlands.
THE NEXT PRIME MINISTER will be a woman, we learned this week. Theresa May and Andrea Leadsom are the two candidates who have made it to the final round of voting among the Conservative Party’s membership. Much press coverage this week focused on Leadson’s CV with suggestions that she had not been wholly accurate about job titles and responsibilities. At her press conference to launch her campaign, posters gave her name as “AndREALeadson” to emphasise her alleged credentials as an outsider of the political “establishment”. Political blogger Guido Fawkes suggested “AndreaMISLEADsome” might be more appropriate. Former party chairman Grant Shapps was the last prominent Conservative to have his record in business questioned and, coincidentally, his Wikipedia entry, like Leadson's, was the subject of contested editing. Shapps and Leadson both deny being involved. Kenneth Clark was entertainingly caught unawares on Sky News, referring to May as “a bloody difficult woman” which has been widely interpreted as a compliment. Meanwhile, no sign yet of an election contest for the leader of the official opposition as Jeremy Corbyn continues to assert his "mandate" from the Labour party membership despite a vote of no confidence from his parliamentary colleagues.
RECENT EVENTS are being described as “revolutionary” in British politics. History always provides a welcome perspective as with Netflix’s account of the 20th century’s most photogenic rebellion in “Cuba: The Forgotten Revolution”. The documentary examines the role of revolutionaries Frank Pais and Jose Antonio Echeverria in overthrowing the repressive dictator Fulgencio Batista. Both men were overlooked in the popular history of the revolution but played a critical role in urban civil protest and died for their political beliefs. Either could have become the leader of the revolution but a dapper young lawyer, Fidel Castro, and a bohemian Argentinean doctor, Ernesto “Che” Guevara, were destined for power and immortality respectively. Castro was more successful as a revolutionary leader than he ever was as a lawyer. His law firm failed to pay its bills, had its furniture re-possessed and electricity cut off. This distressed his rich wife, Mirta, whose father had given them thousands of dollars to spend on a three month New York City honeymoon. The combat fatigues came later.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Je ne #Bregret rien ?
A REFERENDUM OUTCOME, like beauty, lies in the eye of the beholder. Politicians go out of their way to declare “respect” for the result but skip the difficult preliminary work of explaining what that means in a parliamentary democracy. Constitutional lawyers know that sovereignty in the UK lies not with the people but with parliament. Elected politicians alone have the constitutional legitimacy to interpret and respond to the results of a single issue referendum. Writing in the Guardian this week, Belgian author David Van Reybrouck put it like this: “Never before has such a drastic decision been taken by so primitive a procedure – a one-round referendum based on as simple majority. Never before has the fate of a country – of an entire continent, in fact – been changed by the single swing of such a blunt axe, wielded by disenchanted and poorly informed citizens”. Van Reybrouck says that the “collective hysteria” of an election campaign is a fundamentally flawed way to decide complex policy issues. His solution is “sortition” a process where a random sample of the population join with elected representatives over a period of time to understand the issues, listen to experts, consider proposals, hear representations and finally make recommendations. The idea is for a representative sample of the population to get to grips with the issues preemptively before all is lost to the media frenzy of an election. The Dutch writer says that sortition has been used successfully in US, Australia, the Netherlands and, most notably in Ireland where 33 elected politicians and 66 citizens met one weekend a month for over a year to discuss subjects such as same-sex marriage and the rights of women under the constitution. Whatever the system, if politicians don't articulate for the public the constitutional context in which a referendum takes place, they and the country risk being held hostage by the outcome.
“Never before has such a drastic decision been taken by so primitive a procedure.”
CONSTITUTIONAL WISDOM can be fickle. Lawyers know there are issues where it’s not just reasonable but highly desirable to set a threshold percentage for a vote to change the status quo. A threshold is common in national constitutions. It’s a common in companies for shareholder votes. The UK majority voting to leave the UK represented 37.5% of the electorate, below, for example, the 40% threshold set in the 1979 referendum on Scottish devolution. The majority in Scotland represented 41% of the electorate. The idea of a threshold seems to have been rather discredited by the 1979 referendum because it was perceived as “loading the dice” to frustrate devolution. However, as the UK and Europe attempt to digest the result, and with #Bregret and #Regrexit trending worldwide, the question arises, isn’t a threshold a sensible idea?
THERE WAS ANOTHER EXIT FROM EUROPE this week, that of the England football team from the European championships in France. Beaten 2-1 by the tiny nation of Iceland (pop 331,778) the result led to the instant resignation of manager Roy Hodgson and a great deal of anguished soul searching from the pundits. The Wales team – already through to the quarter finals – had to explain their exuberant celebrations at England’s defeat (caught on mobile phone footage). Former England manager Steve McClaren provided perhaps the most perfect piece of hubris/nemesis footage ever caught on television.
BEYOND POLITICAL AND SPORTING TURMOIL, BBC 2s Mr v Mrs: Call the Mediator, a fly-on-the-wall documentary filmed at branches of National Family Mediation looked at negotiations just as fraught and difficult as any EU conference. One mediator, Irene, had to deal with a couple who refused to even be in the same room together. As Sam Wollaston, reviewing the programme in the Guardian asked, “Hey, is there a timely lesson or two here, about exiting relationships, about the economic consequences, about hatred, about doing the best for the next generation? Er…no, don’t be daft, it’s completely different”. Mr v Mrs: Call the Mediator on BBC 2 Tuesdays at 9, episodes 1 and 2 on the iPlayer now.
THE WEEK DREW TO A CLOSE with the wheels of justice still turning in Parliament House. Writers to the Signet joined the Scottish legal community in Court 1 to witness Ailsa Carmichael QC sworn-in as a new Senator of the College of Justice. The Lord President Lord Carloway was in fine form, welcoming the new judge to “our friendly and exuberant cohort”.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
Disunited kingdom?
THE EU REFERENDUM: If Walter was aware of the significance of the occasion, he showed little sign on the walk to the polling station in Charlottes Square. Whatever the result, THE IRISH REPUBLIC’S LAW SOCIETY has reported a record number of British solicitors registering to practise in Ireland as an insurance policy to preserve their right, only available to lawyers in EU states, to argue cases in the European courts. The Irish regulatory body said most of the intake would be working in London and Brussels and wouldn’t be setting foot in Ireland. Ireland brings to mind Fintan O’Toole’s entertaining article, written before the result was known, in the Guardian/Observer on Brexit. As a neutral, O’Toole described Brexit as an unwitting English independence movement although not expressly recognised or debated as such. The Irish journalist marvelled at England “stumbling” towards independence without the collective introspection usually involved in successful independent movements. He questioned if England was ready for this, observing that England had only experienced independence for 300 of the last 1,200 years. He assumes that a vote for Brexit would trigger a second independence referendum in Scotland and unease in Wales and Northern Ireland. Advocates on both sides of the EU debate should be entertained by O’Toole’s thesis, some possibly less so if he's proved right. His witty, caustic writing came to international prominence with the bestselling Ship of Fools: How Stupidity and Corruption Sank the Celtic Tiger.
REGULAR READERS KNOW that the term “financialisation” (see June 3 post) refers to the increasing dominance of the financial industry and its mindset in all parts of the economy. The term covers a wide range of related phenomena: exponential growth in derivatives and financial instruments; decline in the proportion of the financial markets invested in the “real” economy; over-leveraging (more borrowed capital, less owned capital); displacement of trading by financial engineering as a source of profit in mainstream manufacturing and service industries; and impact on business ethics and decision-making of executive and adviser incentives through bonuses, share options and contingent/success fees. The latest high watermark of financialisation is Microsoft’s takeover of the loss-making professional networking website LinkedIn for, ahem, $26 billion. This is about one quarter of Microsoft’s estimated cash reserves and yet Microsoft is financing the purchase with debt rather than incur the tax charges arising from repatriating the cash it has squirreled away offshore. Some commentators suggest CEO Satya Nadella’s “lavish” share options incentivise finding short-term investments that will increase Microsoft’s share price as opposed long term restructuring of the ageing Microsoft Office business model. The LinkedIn acquisition shows that there’s no end in sight to the financial gravity defying of social media platforms. LinkedIn, along with Twitter, Whatsapp, Snapchat, Instagram, Dropbox, Pinterest and others have all been jostling to convince investors and acquisitive big tech companies that their platforms are the future of communication and data exchange. The whole financialisation/big tech nexus has reached an apotheosis with Silicon Valley seed funding incubator Y Combinator’s so-called Basic Income Project, a pilot project in Oakland, California to pay a group of people a universal basic income (UBI) and see how they behave. This is big tech’s nirvana of a fully automated, jobless future where everyone’s a contributor of data and, therefore, a winner. Cynics say it’s big tech’s insurance policy against a backlash when they put everyone, or nearly everyone, out of a job.
ANY LAWYER PURCHASING A CAR DEALERSHIP knows that financialisation is at the heart of the business of making and selling cars. General Motors, the first manufacturer to establish a non-bank finance unit back in 1919, reported finance revenue of $6.3 billion last year. Technology is transforming the car industry: electric and driverless cars; mobile infotainment, big tech companies Google and Apple and new player Tesla going head-to-head with VW, BMW, Mercedes, Toyota et al; apps Uber and Lyft changing the whole way we think about mobility. Echoing the UBI project, GM now partners Lyft and is making noises about providing cars free for pay-as-you-go use. The entire legal, financial and even emotional framework around car design, manufacturing, selling and use is on the brink of disruption. Every second of car usage will be measured and financialised. This is something common to most big tech thinking: all human behaviour is ripe for slicing, dicing and monetising. All good news for IP lawyers.
TECHNOLOGY AND THE ADVENT OF STREAMING SERVICES has led to a golden age of documentary film, with series such as Making a Murderer rivalling dramas for binge-watching and twitter-trending. Ken Burns, pioneer of the long form documentary over 25 years ago with the epic The Civil War, tackles another seminal event in American history with the three part series Prohibition (available on Netflix now). Burns and co-director Lynn Novic present the events following the enforcement of the 18th amendment to the constitution in January 1920, a nationwide ban on the production, importation, transportation and sale of alcoholic beverages that was to remain in place for thirteen years. Using primary source material and rare original footage the film follows some of the extraordinary real-life figures of the era, including two lawyers on opposing sides of the Volstead Act, Mabel Willebrandt and George Remus. Willebrandt, an Assistant Attorney General and LA’s first female public defender, became one of the most famous women in America when she was appointed to enforce prohibition by President Harding in 1921. Although stating that prosecuting speakeasies was “like trying to dry up the Atlantic with a blotter” Willebrandt’s office achieved over 39,000 convictions in just one year. One of her most celebrated was George Remus, the successful Chicagoan lawyer who turned bootlegger when he saw the unimaginable wealth his criminal clients were accumulating. Remus was famous for his lavish parties – on more than one occasion every female guest was presented with a brand new car – and was the inspiration for F. Scott Fitzgerald’s Jimmy Gatz, of The Great Gatsby. The story of George Remus rivals and perhaps ultimately outdoes his fictional counterpart – containing more murder, mayhem and courtroom grandstanding than any novel could reasonably accommodate. Willebrandt had a long and distinguished career; pioneering aviation, radio and tax law; her lifelong friend Judge John Sirica said of her, “If Mabel had worn trousers, she could have been president”
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
“With all due respect...”
FOR BUSINESS GEEKS THIS WEEK there was only one show in town and that was Wednesday’s appearance of retail tycoon Sir Philip Green before the Joint Select Committees’ inquiry into the collapse of retailer BHS. This proved to be an extraordinary six-hour performance against an equally extraordinary backdrop. The Serious Fraud Office has confirmed it is “reviewing material” covering the period of Green’s ownership, his sale of BHS for £1 to Retail Acquisitions, the consortium led by former bankrupt Dominic Chappell, and the circumstances of the insolvency itself. The Insolvency Service is fast-tracking its own investigation. On the crucial question of why he saw fit to sell the business to Chappell of all people, Sir Philip appeared to put this down to a combination of three things: (i) Goldman Sachs giving Chappell the thumbs up, although not acting in any fee earning advisory capacity; (ii) law firm Olswang and accountants Grant Thornton were seen to be willing to act for Chappell; and (iii) a reassuringly large team of people accompanied Chappell to meetings (seriously). He insisted, “I’m not here to blame anyone because that’s not my style. But there are some other people I could mention who are to blame”. Sir Philip seemed to suggest that the imprimatur of fee earning advisers was a substitute for reaching his own conclusions despite his assessment that the advisers "didn't know [Chappell] from a hole in the wall". The inquiry's members have most definitely taken due note of the pivotal role that professional advisers played in facilitating Chappell's short and ill-fated reign at BHS. They've also clocked the “financialisation” of the advisers' participation in the deal, through contingent/success fees and, possibly, an equity kicker. Corporate governance joins commercial judgement as casualty in the story. MPs raised with Sir Philip the absence of chairman Lord Grabiner QC from the crucial directors' meeting to approve the sale. Sir Philip would not be drawn but IainWright MP suggested that Sir Philip's "controlling" reputation would make it difficult for co-directors to stand in his way. Within five minutes of Green sitting down, it was clear that his catch phrases of the day would be “with all due respect” and “respectfully” but it didn’t stop him trying to run proceedings, frequently telling MPs they were asking the wrong question.
“I’M NOT HERE TO BLAME ANYONE BECAUSE THAT’S NOT MY STYLE. BUT THERE ARE SOME OTHER PEOPLE I COULD MENTION WHO ARE TO BLAME.”
Green objected to how one MP was looking at him: “Sir, can you please stop looking at me like that”. He told another MP he looked better with his spectacles on. He objected to the whispering of a clerk. Sir Philip’s body language revealed his unease at not being in control, particularly after the half-time break after which he took to spreading his arms outwards over the neighbouring chairs. His mobile phone went off at one point, an old Nokia model which somehow fitted Sir Philip as someone who made his name in an earlier iteration of free market capitalism, before post-crash economic depression. MPs homed in on sale and lease-back deals and other manoeuvres. Contradicting Chappell’s evidence that Green had gone “insane” at the prospect of Mike Ashley’s Sports Direct acquiring BHS, Green laid claim to personal friendship with Ashley. Green said he had no knowledge of why Ashley’s last minute bid failed. Perhaps in response to Green’s implausible claim to have no knowledge of the accounts of companies in his wife’s name, MPs have now called Lady Tina Green to appear before them.
THE SIGNET LIBRARY HOSTED members of the Scottish Session Papers Digitalisation Project this week. Principal Researcher James Hamilton assisted by Karen Baston represented the WS Society. Those attending included Professor George Gretton WS and Professor John Cairns of the University of Edinburgh’s Law School and Andrea Longson, Senior Librarian at the Advocates Library. The Signet Library was the first to have the index to its Session Papers digitalised. The Session Papers are a record of early proceedings at the Court of Session and, aside from being a source of early legal decisions, they provide a fascinating source for historical and sociological research. James Hamilton, who curates the Signet Library’s historical collection, says the project is “an effort to have Scotland's civil court papers c.1705-1850 fully digitised and made available online. Given that every famous name, every place, every industry, everything, features in these materials, and given how the courts then dealt with much that is considered the role of government or civil administration now, this promises to enrich profoundly the story of the Scottish Enlightenment”. The project pilot begins in the autumn and the Signet Library’s Session Papers will be heavily involved. Hamilton and Baston’s hard work and dedication have ensured that the Signet Library’s Session Papers are in good order, recently cleaned and re-organised. As Professor Gretton was heard to remark, the Signet Library’s Session Papers have never looked better. No doubt the papers contain proceedings as colourful and entertaining as Sir Philip Green’s appearance at Westminster.
“THE PROJECT PROMISES TO ENRICH PROFOUNDLY THE STORY OF THE THE SCOTTISH ENLIGHTENMENT.”
A DELEGATION FROM THE IRISH LAW SOCIETY visited the Signet Library a few days ago. They were interested to hear about Signet Accreditation, the innovation of the WS Society begun ten years ago to accredit legal specialist through assessment. The Irish Law Society’s Director of Education, “TP” Kennedy and his colleagues listened to WS Society CEO Robert Pirrie WS describe the assessment which puts each candidate through a simulation of day-to-day legal work which is then double blind marked. The Irish group were impressed by the forward-thinking behind the accreditation project before retiring for lunch in Colonnades. It is a pity that more solicitors and law firms in Scotland have not taken up the challenge of Signet Accreditation. This is due partly to the fact that the Law Society of Scotland’s own specialist accreditation, which has been running for over 30 years, is better known and doesn't entail the same “fear of failure” of an assessment. How long the WS Society will run its accreditation scheme without more being done to promote assessment as an effective means of professional development for the solicitors' profession is a moot point. Is it an idea ahead of its time?
THE GAME OF GOLF has been in the news recently owing to Muirfield’s controversial decision not to admit women to membership on the same terms as men. A more profound difficulty arose in 1457 when a statute outlawed the sport altogether. Golf, the statue thundered, “should be utterly condemned and stopped”. Sadly, as some might say, the law was repealed in 1471.
— “Writer”
Writer's Week is not intended to represent the views of the WS Society or its members.
The good, the bad and the ugly
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.