Knowledge

There is no general common law duty to provide reasoned decisions.  However, a recent Outer House judgment has served as a reminder that the basic principles applicable to the giving of reasons have developed to such an extent that it is now expected in most circumstances.

In the recent case of R (RJM) v. Secretary of State for Works and Pensions, the English Court of Appeal has ruled against extending the protection of Article 14 ECHR to the intentionally homeless.  It is submitted that this was an unduly narrow view which, if more widely followed, would risk denying legitimate protection to many vulnerable groups.
Background

Following the introduction by the Department of Health (DoH) of a new NHS scheme to encourage GPs to switch patients on to alternative cheaper generic medications when available, the Association of the British Pharmaceutical Industry (ABPI) has declared that it is to enter into a judicial review action against the DoH.

Most golf clubs are formed as unincorporated associations.  This is the easiest, cheapest and the most informal way of forming a club.  Upon joining such a club members acquire both rights and liabilities between themselves and the other members.  It is generally the case that the liability of the individual member is limited to his entrance fee (if any) and his subscription.  Responsibility and liability for transactions and activities of the club rests with the club’s management committee.  This is a serious disadvantage of an unincorporated association and members forming part of the man

Recently, the Court of Appeal reviewed the scope for restrictions which can be placed on employees via their employment contract after they have left their jobs.

In March 2007, the Inner House of the Court of Session considered the first appeal heard in Scotland against a decision of a Fitness to Practise Panel of the GMC.   
Background

The so-called “right to roam” legislation came into force in February 2005, but it is only this month that the Scottish Courts have fully considered the competing interests of access rights and a landowner’s right to privacy and security in the high-profile case of Mrs Ann Gloag v Perth and Kinross Council and The Ramblers’ Association.

A Scotswoman’s home is her castle

Brown v General Dental Council

Processing sensitive personal data for health and safety reasons and still complying with data protection laws has until recently created uncertainty for employers. However, the Information Commissioner’s Office (ICO), the UK’s independent authority set up under the Data Protection Act 1998 (the Act) to protect personal information, has now published Guidance on the use of Violent Warning Markers outlining how employers can protect their staff in the workplace and still fulfil their obligations under the Act.

It appears as though alcohol is never out of the British news, current worries about binge drinking and the myriad of health and social concerns that accompany it have long proved a discussion point on TV and in both broadsheets and tabloids.  It is then hardly a surprise that a Private Members Bill should be brought forward to regulate the labelling of alcoholic drinks.

The DTI published the Energy White Paper on 23 May 2007. The White Paper consists of 11 chapters on energy security and climate change; saving energy; heat and distributed generation; oil, gas and coal; electricity generation (including renewables, carbon capture and storage for fossil fuels, and nuclear power); research and development; transport; planning; devolved administrations; impact of the measures and the implementation process.

Anyone buying or selling property in Scotland knows (or soon finds out) that most property is affected to some extent by conditions in the title, regulating what can be done with the property.  These burdens in the title can deal with a variety of issues, such as the use to which the property can be put, imposition of an obligation of maintenance or repair of the property, restrictions on building or carrying out alterations to the property and so on.
Enforcement rights

Last month’s edition of Open Door looked at a recent decision from the High Court in England on the remedies available to landlords under insolvency legislation in England against tenants who enter into administration.  Similarly, in the recent case of Marinus Charles Maris and Mrs Roxanne Maria Sloane-Maris v Banchory Squash Racquets Club Limited, the Court of Session in Scotland has looked at the statutory arrangements north of the border in relation to irritancy,

The Government published its consultative draft Climate Change Bill on 13 March 2007.  The deadline for responses is 12 June 2007 with a full Climate Change Bill set to be published in the Autumn. The Legislation is to be centred around 4 pillars:

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

Over the past few years, the courts have considered whether arrangements between public bodies should be subject to the procurement rules on many occasions.  Normally the focus is on whether the arrangements amount to an ‘in-house’ award. 
In the present case, the ECJ firstly noted that if, under national law, the entity in question, Tragsa, is required to undertake activities, or it does not have a choice as to the tariffs for its services, there is no contract and therefore the procurement rules do not apply. 

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.

Following hot on the heels of electricity generators in Great Britain and in Finland, GB suppliers of gas and electricity were granted on 1 March 2007 an exemption from the relevant EU procurement rules. The European Commission has considered an application under Article 30 of Directive 2004/17 (the “Utilities Directive”) and determined that GB electricity […]

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