Sometimes it seems as if the lawmakers in Holyrood and beyond aren’t listening to the things that matter to the public and to the legal profession. So The Firm thought we would try to do something about it, and asked ten lawyers to tell us the one thing in the world of law they would change.  Their choices range from the detailed to the downright disturbing, But what would you say?

Our method could hardly be described as scientific, but we thought the idea was sound.  As well as the lawyers who contribute to consultations and steering groups when new legislation is framed, the audience of The Firm magazine includes Parliamentarians themselves.  So the idea was simple; given the chance, what would you actually like them to do? 

We asked a range of practitioners from different specialisms and of different ages to tell us what they would like to change about any aspect of the law in Scotland, with no restriciton. Would you bring back the death penalty?  Or abolish wigs and gowns in court?  Castration for sex offenders?  Free Tunnocks Tea Cakes? (actually the are free, if you are a blood donor)  All we asked them to do was nominate one single change to any aspect of the law in Scotland, that would make some kind of improvement.

Some chose to focus on the issues and injustices they see in their daily work.  Others took a wider view, proposing whole new approaches to the application of criminal justice.  And hey, it might just work, too. 

Perhaps unsurprisingly, the dreaded but inevitable Home Reports seem to be a cause for concern, and one of our respondents will have your guts for garters if you park your car in the wrong spot when you aren’t entitled to.  But the results of our toedip into the state of the nation makes for thoughtful reading.  The ten lawyers featured here don’t claim to represent the legal profession in Scotland, or even their wider practice area, but they do offer a fascinating peep into just exactly where the edges of legal world are currently grating against us.

So would you like to see professional juries?  Price caps on petrol?  Read on and see what ideas our ten came up with.

Norman Wisely,
Partner, CMS Cameron McKenna
While perhaps not wildly exciting to the majority of the readership, being both (1) selfish and (2) oil and gas lawyers, we would like to see changes in the law around title to oil and gas licences.  Specifically the amendment we would introduce would reduce time spent on due diligence in the oil and gas industry – not a particularly light-hearted topic, but with UK Oil and Gas Industry having contributed over £215 billion through North Sea taxes since 1968, creating more wealth than any other production or manufacturing industry in the UK, any improvements would certainly have wide ranging implications. It is key that the Government remains committed to promoting enterprise and growth, a key aspect of which is procedural reform.

At present, any sale or purchase of oil and gas assets requires due diligence, including legal due diligence. This is time-consuming, expensive, repetitive and often it is very difficult to trace percentage interests to oil and gas fields through the chain of archaic (and often missing) documents. We suggest a move to simplify such due diligence by creating a form of register similar to the land register for property, where title would effectively be clear(er) and guaranteed by the government. 

This would increase legal certainty, reduce  the need for due diligence and generally simplify oil and gas conveyancing. This would seem to be in line with the Government’s commitment to promote enterprise, as simplification of procedure could promote industry activity.

There are problems that would need to be overcome, including the cost of implementation, amount of surrounding legislation required and issues around a state guarantee i.e. the requirement of the state to provide indemnity should a licensee suffer a loss due to a mistake on the register, but if this change reduced any time spent in dark basements trawling through title to oil and gas assets, we’d get pretty excited about it. 

A compromise alternative would be improving the BERR website which currently holds relevant licence data but which is not conclusive as to ownership. This option retains the advantages whilst avoiding the major disadvantages – cheaper and simpler than a new register and no state guarantee required. In order to ensure the register is kept up-to-date and therefore more reliable than at present, a legally enforceable time limit within which oil and gas transactions must be registered with BERR could be introduced.

Perhaps one of biggest questions surrounding this legal change is, who really benefits? In addition to serving to increase legal certainty, it will be of most benefit to those at the coalface of due diligence by greatly reducing the repetitive and time-consuming work that due diligence entails. This would in turn, however, reduce legal fees for both buyers and sellers and in some cases reduce the length of transactions. However with a large chunk of legal fees apportioned to due diligence in the average oil and gas transaction, perhaps this is a legal modification we should really keep to ourselves….

Sue Arrowsmith
Public Working for Prisoners
There is a general public perception that prisoners have an “easy life” in prisons.  Whether this is true or not is a matter for debate elsewhere, but the perception is there.

Most members of the public work a 7 hour day, 5 days a week.  Most members of the legal profession work… well, rather more!  At present, some prisoners are given opportunities to work within the prison community, but the non-criminal public is generally unaware of the scheme.

One way of changing the public perception of prisons, and to make the life of a prisoner less appealing to easily influenced members of the public, would be to have working groups of prisoners out and about in the community, undertaking the jobs that would help our society. 

A compulsory scheme of this nature would be my one change in the law.  I believe that, more than just changing public perceptions, it would get prisoners into acceptable working habits,  and give them recognisable work experience, making their transition from prison life to free life a smoother process.

Naturally, jobs would have to be tailored to recognise security and supervision issues, but prisoners could assist with labour shortages that are presently causing a problem with “less appealing” careers.  Not all prisoners would be capable of undertaking physical work, but there could be a range of jobs at all levels.  Prisoners who are felt to be a threat to public security even under supervision could be given work within the prison itself, but this would be the exception, rather than the rule.

The range of jobs on offer could be determined by the local council and local job centre, to ensure that the labour force was used to best effect in each area, and on-the-job training could be available to allow the prisoners to progress during their time within prison.
There are no doubt many further issues that would need consideration to make this idea a reality, but I think that this one change to prison life would make huge changes to the lives of criminals.

Rod MacLeod, Associate               
Tods Murray LLP, Banking Department
Let’s give counterparts a chance. Given the differences between the rules governing the formal execution of documents north and south of the border, those of us who have been involved in cross-border transactions may be harbouring sneaking suspicions that our English law brethren would be perfectly happy to let their clients sign the back of a cigarette packet in the local pub if it could then be tacked on to the back of an agreement at completion (and indeed, some of us have no doubt been at such completion meetings).

However, if I could make one change to Scots law, it would be to allow counterpart execution of documents that require to be formally executed under the Requirements of Writing (Scotland) Act 1995.

As commercial transactions are increasingly concluded by e-mail, the traditional round-the-boardroom-table completion meeting is no longer the norm and parties are reluctant to attend meetings in person if technology allows them to execute documents in different locations and provide signed pdf copies over the ether.

Naturally, such practices don’t lend themselves to multilateral agreements governed by Scots law, where the parties are required to sign the same physical copy of the agreement before it becomes effective.  

Although there are different tactics for coping with signatories executing in different locations -for example, converting the agreement into a unilateral document that takes effect by notice and acknowledgement, or having the document executed under power of attorney, or sending trainees off to far-flung corners of the world to track down the elusive signatory- these options aren’t always available depending on the nature of the agreement or practical in the circumstances of the transaction.

Whilst I’m not suggesting an EU-style “harmonisation” of English and Scots law execution requirements, allowing multilateral documents to be executed in counterparts would make it much easier for cross-border transactions involving Scottish assets to be concluded without Scots law throwing the proverbial spanner in the works.   

It would also give Scots law documents a greater degree of “compatibility” with documents from other legal jurisdictions, more certainty and control of when documents becomes effective and help remove barriers on transactions involving Scottish documents (in general) completing quickly and efficiently on the appointed day.

Although it’d be a good idea to throw out the cigarettes at the same time.

John Scott, Capital Defence, Edinburgh
I am at a stage in my life and career where the word curmudgeon is not exactly inappropriate. I maintain, however, that it’s not all my fault. I feel that I have been misled. Having presumed that the criminal law would be reasonably settled after so many centuries I quickly discovered that it is probably the area of law with the most legislative and other change.

So what’s the problem? I am certainly fed up with certain politicians trying to legislate to keep the editor of the Daily Record happy. We have seen many such knee-jerk laws. They are introduced in haste to meet some threatened or perceived new emergency. Their flaws are exposed in time, if not immediately.

This brings me to my suggestion for a change in the law. We should ban changes in the law through legislation, at least for the next 10 years. At the very least politicians should be banned from proposing new criminal laws in the 12 months before an election.

I read that Tony Blair and New Labour have created 3,600 new offences since 1997. That’s over 300 new crimes a year. Obviously they do not all apply in Scotland but we got a lot of them and Scottish versions of others. It was worse when we had Labour in power here too, with a majority through coalition.

And it’s not just new legislation. Most of the human rights challenges in Scotland since 1999 have been in criminal cases. (West Lothian, in particular seems to have been the Scottish equivalent of Pinochet’s Chile) It means that we need to keep an eye on the law in Strasbourg and elsewhere to see if it helps answer questions here.

The upshot is that we need a break. We have more than enough laws. The Crown and police have more than enough powers to deal with real crime. Let’s see how we get on with what we’ve got.

Gina Wilson, Senior solicitor, McRoberts
In order to improve the law of Scotland, there should be a change to the law such that the losing party in an employment tribunal should have to make a contribution towards the expenses of the successful party.  The level of the contribution to expenses should be on the Sheriff Court scale of fees.  

Whilst the employment tribunal rules of procedure introduced in 2004 have made it slightly easier to secure expenses in circumstances in which the other side acts wholly unreasonably, disruptively, abusively or vexatiously, the award is usually only for a nominal amount.  The current system provides practically no barrier to a vexatious litigant who conducts himself reasonably during the course of the litigation.

In an employment tribunal claim which I defended a few years ago, I represented a claimant who was a Scottish, white, protestant, heterosexual man from Glasgow,. He claimed against both his employer and his manager on the basis that he had been discriminated against by his Scottish, Muslim manager on the grounds of race, religion, sex and sexual orientation. 

After the respondents made clear that an extra-judicial settlement would not be forthcoming, it did not come as a surprise that the claimant withdrew all his claims.  In respect of his claim for race discrimination, it was held by the tribunal that “This claim was not on the face of it founded on any factual basis other than that a claim of race discrimination had been made against the claimant, and that the respondents had investigated it”, yet the claimant was ordered to make payment of only £500 towards the respondents’ expenses because the present rules require the claimant’s means to be taken into account.

If claimants were faced with the prospect of expenses following success, it would have the effect of focusing their minds when they are deciding whether or not to lodge a claim.  I acknowledge that this proposed change could result in some genuine claimants not pursuing claims for fear of having to bear the respondent’s expenses.  However, this has to be weighed against the increasing number of nuisance claims and the significant pressure being placed on the tribunal system.  On balance, I consider that this proposed change would not dissuade the vast majority of genuine claimants.  Whilst the employment tribunal rules have historically been drafted on the premise that tribunals are conducted by unrepresented claimants and respondents without expense being incurred, as this is no longer a reality the law on expenses should be changed to be brought in line with the Sheriff Court where cases of similar importance and value are decided.

Frank Fowlie, Partner, CMS Cameron McKenna
We think that it is essential that a new law be brought in to ensure Scottish sporting teams succeed in the future (or at least don’t tease us with the prospect of success). The law would constitute a framework statement that “it is illegal for any Scottish national sports team to fail to qualify for any stage of a World or European competition by goal difference or anything else constituting glorious failure”.

This would be a criminal office with actions being brought by the Procurator Fiscal. All team sports would be covered and the case would be heard before a jury to determine whether the offence constituted glorious failure. This would be governed by a plethora of long and complicated statutory instruments, which would take weeks to read and months to understand (a bit like the new Companies Act except longer). The base (but non-exhaustive) definition of “glorious failure” in those regulations would be the performance of the national football team at the World Cup in Argentina in 1978.

This would be a strict liability offence punishable by a fine or imprisonment with players, managers and coaching staff all being liable to pay the fine or go to prison. Any fine would be ploughed back into that particular sport at grass roots level to ensure it doesn’t happen in the future. There will also be a “three strikes and you’re out” rule (which is bad news for the football team if they ever happen to make it to the World Cup Finals again).

Defences such as “we wuz robbed” and “but it was the referee” will be disallowed by any judge prior to the jury considering its verdict. Special defences of “we were playing Brazil” (in football) or “but they are all seven feet tall” (in basketball) will be available.

Rob Aberdein, Associate, Head of Litigation Aberdein, Considine & Company
Get rid of the DLP and PCC!

The merits of the post university education process for young lawyers in Scotland have been the subject of teeth-gnashing debate for many years.

Some young lawyers still will remember the dreaded ‘Test of Professional Competence’ Exams, which after much debate only lasted a year!  The Law Society also introduced the ‘new DLP’ in 2000.  If I am being frank, I took little from the Diploma and even less from the PCC.  Both were a good excuse to socialise and I even managed to do a second degree whilst doing the DLP!

So what about the following as a radical proposal?:
1. Immediately on completion of the L.L.B. (but prior to starting a traineeship), all young lawyers attend an intensive 3-month ‘General Legal Skills’ programme which is run commercially and focuses on the provision of hard and soft ‘lawyering skills’.  Suggested topics that could be taught may for example include commercial drafting, drafting of pleadings, negotiation skills, mediation skills, advocacy training, presentation skills, client management skills, time and work management skills, networking skills, business development skills as but a few examples. 

The broad principle being to provide good generic legal and business skills.  The legal skills would be equally applicable across all legal disciplines.  Whilst basic business skills, presentation skills, client management strategies and public speaking training would focus on the commercial aspects of the law.

2. Following the 3-month pre-traineeship ‘General Legal Skills’ programme the 2-year traineeship is then completed and concluded with a further 3-month intensive, specialised training course that relates specifically to the area of law in which the NQ solicitor intends to practice.  Courses could range from ‘Commercial Conveyancing’ to ‘Advocacy and Pleadings’.  These courses could be provided again by a commercial entity and would engage leading lawyers (and businessmen) in their respective fields to structure the courses and teach them in exchange for commercially viable rates.  These “specialised” training courses would allow young lawyers to not only build on the experience gained in their traineeship but also enter their NQ roles with highly developed sector specific skill sets.

Such specialised training could only enhance the quality of the young lawyers we produce and would sit well with the already well received “specialist accreditations” currently on offer by the Law Society.  Don’t get me started on the LLB!!

Sverre Aaen, Partner, Aaen Peach Solicitors
When you begin to think about ways in which you would change the law, you get lots of ideas. To my mind I could choose from laws which would in my opinion benefit society, address issues of inequality, poverty or our rights to privacy (which seem to be evaporating, but that’s another story) or I could chose something that really gets my goat. The goat wins hands down.

Having become a father for the first time just over a year ago, I have started to notice a few things that were previously absent. Other than small sticky fingerprints all over my suit trousers, I have also noted that society has given special parking privileges to those with children. Once I had started taking an interest in finding these parking spaces I also noted that they are often side by side with disabled spaces. However, not all is well in the land of assisted parking.

The problem with these spaces is that they are run on a kind of trust principle which doesn’t really work. People tend to look at them and think that they wouldn’t have to walk far if they parked there and anyway, everyone else does it don’t they? This is the whole point of these spaces as people who might not be able to walk very far in the first place need to be near where they are walking to. It is a simple point of fairness that is lost on the selfish who cannot see anyone’s need except their own.

So what’s the solution? In my opinion it’s stockades. If you get caught parking in a disabled or parent and child parking space you should be put in a little set of stocks at the end of the bay where people will know what you’ve done and can throw things at you. And if you’re really unlucky a bad driver might run over your toes.

Seriously though, my issue is perhaps not so much one of law but one of decency and morality. Admittedly, I’ve not done much research here to check the up-to-date position on using these spaces, but if there is a legal position, it isn’t working. The irony here is that I now think we need some kind of law to make up for a lack of decency and morality, but this seems to be the way of things.  

P Michael Samuel,
Chairman, Miller Samuel LLP
Consider your predicament: your first appointment on a dark, wet Monday morning is a grieving “widow”. On further questioning, you find she is in fact the distressed “co-habitee” of Mr X, an Englishman who died in Scotland. Your client at the deceased’s obsequies got an extra surprise: another widow in weeds at the graveside supported by her two young children. Mr X, it turns out, had managed to secure a decree nisi before heading towards his Maker without benefit of a will - but no decree absolute had been pronounced. So his ex-wife was, for most purposes, still his wife and she and her children hold claims on the intestate estate. Things get more complicated as your client announces she was particularly distressed because she and the deceased were “engaged” and had fixed a wedding date. Quid iuris? And the Monday headache is that you would be a very brave lawyer to advise your client she readily could invoke our cohabitation provisions to ensure her once beloved’s worldy goods make their way to her and not his nearly ex-wife. Our recognition of more modern living arrangements has progressed by a hotch-potch of reforms. While your client might very well need to make some case-law it is unlikely she will be the last woman to find herself in this sorry state. Our legislature expending its energies on a piece of codifying legislation bringing coherence to succession rights is a job that has been outstanding since not long after the 1964 Act.

Karen Lang, Bird Semple
IT’S NOT EVEN LAW YET, BUT SCRAP IT I SAY …
Single surveys? Who are they kidding!

The introduction of the ‘Single Survey’ is likely to have completely the opposite effect to that desired as, not only will Purchasers potentially want to survey a property before they buy, sellers will have to as well!

The Single Survey and Home Report into which it is incorporated, is due (at the time of writing anyway) to be introduced on the 1st December 2008.  As yet, the Council of Mortgage Lenders has not finally signed off on the new regime or even confirmed that Lenders will accept the Survey for Mortgage purposes.  

And if they don’t? 

Well, the vast majority of Purchasers will have to get their own mortgage valuation too…..thereby creating, even if there is only one buyer, multiple surveys!!

AND, it only has an estimated shelf life of 3 months! 

It will be a requirement that, within 9 days of going on the market, a Home Report is available to purchasers. In the current market at least, by the time an offer is received, it is HIGHLY likely the survey will have to be updated, as 3 months will have passed……..multiple surveys, still one buyer!

And even where a lender says the Single survey is acceptable and the property has been on the market less than three months, the Survey is not going to be as detailed as current Home Buyers Surveys ( scheme 2) so the more cautious amongst us may want to  point out to purchasers buying older properties that they may want their own independent surveyor to have a second more detailed look anyway…SINGLE SURVEY – THINK AGAIN … PLEASE?