Knowledge

In November and December last year, the Scottish Information Commissioner (“SIC”) issued eight separate decisions concerning a series of requests made under the Freedom of Information (Scotland) Act 2002 (“FOISA”) to all local authorities in Scotland.  The information requested related to incidents of complaints in the last 10 years against a specified company, the directors of that company, or any employee of the company, made to the local authorities’ trading standards arm.

The Companies Act 1985 prohibits a company from giving financial assistance for the purposes of an acquisition of its own shares or those of its holding company. 
The definition of “financial assistance” is circular and has been interpreted broadly to include a series of activities from direct loans to a purchaser by the target company, to the target company reducing or discharging a liability incurred by a purchaser, or a subsidiary of the target company guaranteeing funds lent to the purchaser (and other similar arrangements). 

Scottish voters have become used to using several voting systems over the past few years, with the traditional “first past the post” system still in use for Westminster elections and two different versions of proportional representation (the additional members system and the party list system) used for elections to the Scottish Parliament and the European Parliament respectively.  However, as Scottish voters head for polling stations on 3rd May, it will be the first time that Scotland has had four voting systems in operation.  The new system, known as the Single Transferable Vote, will

Background

The anticipated Equality Act (Sexual Orientation) Regulations 2007 have been published in draft by the Government.
Once in force the Regulations will make it unlawful to discriminate on grounds of sexual orientation (meaning an individuals sexual orientation towards persons of the same sex, opposite sex, or both) in the provision of (i) goods, (ii) facilities and services, (iii) education, (iv) disposal and management of premises and (v) the exercise of public functions.

From 6 April 2007, section 293 of the Companies Act 1985, setting the age limit for directors of public companies and subsidiaries of public companies at 70 years will be repealed.  Companies subject to this section may wish to check their Articles and take steps to deal with the change.

The law relating to keep open clauses has been reasonably well settled, since the decision in Highland and Universal Properties Ltd v Safeway Properties Ltd in Scotland, and the contrasting English position, determined in the case of Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd.

In late 2006, the Department of Trade and Industry published a consultation on a draft statutory instrument to allow disclosure of certain information under Part 9 of the Enterprise Act 2002 (‘the EA’) for the purposes of prescribed civil proceedings under that Act. 
Disclosure of information and Part 9 EA

Derry City Council v The Information Commissioner
Appeal No. EA/2006/0014
This case concerned a request for information by a Belfast newspaper for details of Derry City Council’s agreement with Ryanair from 1999 regarding the use of Derry Airport. Specifically requested was information on how much Ryanair pay Derry City Council for use of the facility.

The repairing obligation is one of the most essential components of a full repairing and insuring commercial lease for both landlord and tenant.  For the landlord, it is the means by which the condition and value of his property may be preserved, and for the tenant, it is likely to involve one of its most significant liabilities under the lease, after payment of the rent. The precise terms of the wording of the obligation is therefore one of the most carefully negotiated elements of the lease, and also one which is a regular subject of litigation.

Irritancy in Scotland also under Scrutiny

The House of Lords decision in a recent case (Celtec v Astley) has important implications on the use of secondment arrangements in a potential TUPE transfer situation. In 1990 the Government outsourced their vocational training to a new organisation (C) and seconded a number of civil service employees to C. Three years later the seconded employees were given the option of resigning from the civil service and undertaking employment with C, or being reallocated to a different civil service department. The employees chose to take up employment with C.

The English High Court has awarded £852,000 in damages to an employee who brought a claim against her employer after suffering bullying and harassment from fellow employees (Green v DB Group Services Limited (“DB”)).
 

The Work and Families Act received Royal Assent in June 2006. Certain provisions came into effect on 1 October 2006 and apply to women with an expected week of childbirth on or after 1 April 2007:

The Scottish Parliament was brought to life by the Scotland Act 1998 and met for the first time in 1999 marking the transfer of devolved powers from Westminster to the Scottish Ministers.  Devolved powers are the areas that The Scottish Parliament can legislate on and are as follows:-

Since the entry into force of the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 on 1 January 2005, the general public and those in business seem, by and large, to be well aware of the potential benefits of the legislation.  Information covering a plethora of topics has been accessed and used for a huge variety of purposes.  Indeed, public authorities subject to freedom of information legislation have recorded a larger number of information requests than were expected prior to the entry into force of the legislation, and appeals to the UK and Scottish Inf

In the second of this regular slot, we explain the difference between Green and White paper. Should you wish any parliamentary procedure or terminology explained please speak to your usual Shepherd and Wedderburn contact.

In the world of information legislation in Scotland, the Freedom of Information (Scotland) Act 2002 (“FOISA”) reigns supreme. But is this Act the most appropriate tool to use in all circumstances?
The answer is most definitely no. Lurking behind this headline Act are two pieces of other information-related legislation that, in many circumstances, are more powerful tools to access and use certain information.

Access rights

In Green v DB Group Services Limited, the High Court upheld an employee’s claim of bullying and harassment and awarded £800,000 in damages on the basis that the employer had breached its duty of care towards the employee. The largest part of the award was £640,000 awarded for future loss of earnings and pension and this marks the case out as being unusual.
The implications of this case will be discussed in our next publication.

In a recent decision, the UK Information Commissioner gave useful guidance on what constitutes a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”). As the definition of a public authority is wider under the EIRs than under Freedom of Information legislation, it is important for bodies to be aware that, while they may not be subject to Freedom of Information obligations, they may nonetheless be under an obligation to disclose environmental information under the EIRs.

A recent decision of the UK Information Commissioner looked at the issue of when information is held by a public authority.  The Freedom of Information Act 2000 provides that only information which is held by a public body, or held by a third party on behalf of a public body, can be disclosed.

The High Court’s recent decision in Cameron and Others v Network Rail Infrastructure Limited [2006] EWHC 1133 (QB) provides some comfort to regulated utilities as to their possible status as hybrid public authorities under the Human Rights Act.
Background

While the UK has seen the introduction of wide ranging freedom of information laws over the last two years, the EU remains veiled from its citizens behind its own rules for public access to documents.  The recent judgment of Franchet and Byk v the Commission highlights the ongoing disparities between domestic and EU law. Freedom of Information in the UK
The UK has opened its public bodies to increased public scrutiny in recent years in line with other countries across the world such as the USA, Canada and New Zealand.