Justice & Legal February 2023
On Monday 16th January, Scottish Secretary Alister Jack took the unprecedented step of using powers under s35 of the Scotland Act to block Scotland’s recent gender reform legislation. It is the first time this power has been used, and the Scottish government has vowed to fight it. Jack objected on the grounds that the legislation would adversely affect UK-wide equality laws, would substantively change what is a ‘man’ or ‘woman’ for purposes of the Equality Act and the process would be ‘open to abuse and malicious actors’. Just the objections which women voiced but were ignored.
Prior to her resignation, Nicola Sturgeon announced she would be challenging this use of s35 in the courts, but now it depends on who will succeed her.
The EU calls it ‘nagging’, or persistent marketing and advertising from gambling companies. Gambling Research Glasgow (GRG) showed that about a third of people who gamble do so when they were not otherwise going to. The reason is marketing. It cost the gambling industry £91.2 million in paid advertising in just 3 months in 2021, but it obviously pays off for them.
Those living in social deprivation are disproportionately affected, with concurrent poor mental health, high alcohol consumption and health problems. The industry puts already vulnerable people at further risk, reinforcing existing inequalities. Research suggests the industry relies on those harmed for a substantial part of their profits, with 40% of spending on online sports betting generated by the 15% of people experiencing moderate risk or problem gambling. One per cent of gamblers spend 58% of their income on betting, and suffer financial, health and personal problems.
The current review of the Gambling Act 2005 is due to publish its findings early this year. Although gambling is reserved, local governments can act through Licensing Boards, by inspecting gambling premises, limiting opening hours and conducting test purchases to ensure under 18s are kept out. But no inspections at all were carried out in Scotland in 2020/21.
The Scottish Parliament published a new report last month which positions gambling as a public health issue. In England there are several NHS-funded gambling treatment clinics, but Scotland has none, despite gambling being a significant risk for suicidality. It has now been included in Scotland’s Suicide Prevention Action Plan 2022/25.
Bristol City Council banned all gambling, junk food and alcohol advertising on council owned sites, including bus shelters, billboards and digital screens. Greater Manchester Combined Authority’s campaign ‘Odds Are: They Win’ contains hard-hitting public health messages delivered to local communities.
A petition to Holyrood sponsored by Roger Mullin wants to outlaw SLAPPs, or Strategic Lawsuits Against Public Participation. These allow claimants to conduct a war of attrition against their victim, breaking them down physically, mentally and financially, until they give up regardless of the merit of the claim. The EU is planning laws to allow judges to dismiss ‘manifestly unfounded’ legal actions, and the UK is looking into it as well, but Scotland does not yet believe new law is needed due to its recent reform of defamation law, where people should only win the action if they can show serious harm.
But others think it is still needed nonetheless, as people may not be alleging defamation, but rather financial loss or even criminal activity, and even the revamped defamation law does not allow a quick dismissal of what is regarded as a bogus action.
Scotland and Assisted Dying
The intervention of the UK government in Scotland’s recent gender reform legislation has led to the Assisted Dying bill shortly going through the Scottish parliament being subjected to more legal scrutiny. Its LibDem proposer, MSP Liam McArthur, is concerned about the possibility of medical professionals opting out of the legislation through a conscience clause. Because it is the General Medical Council which rules on this type of issue and the GMC is accountable to Westminster, the proposed legislation has been referred.
Hate Crime legislation
The Hate Crime Act 2021 (HCA) is still not in effect as law, possibly due to concerns over how far it may extend. It follows the Offensive Behaviour at Football Act which intended to end sectarianism but lacked clarity, confusing police, prosecutors and fans, and was eventually repealed. It is not clear what the HCA means by ‘stirring up hatred’, whether it is hatred or mere insults. Will it undermine free speech? Will the police pursue unpleasant or nasty speech?
Incidents are already recorded in Scotland and England as ‘non-crime hate incidents’. In one incident in England a football fan was ‘required’ to attend a ‘voluntary’ interview on his views on a flag.
Perth Prison Remodelled
Andy Hodge, governor of Perth Prison, wants to transform what happens to prisoners while they are in jail, not punishing, but working with them. Perth is one of the first prisons in Scotland to use ‘Lego therapy’ to boost prisoner confidence communication and social skills. Lego therapy was developed by Canadian neuropsychologist Daniel LeGoff to assist children with autism to communicate. Hodge thinks that by giving prisoners choices and support, it will alter their end destination.
Other prisons have been criticised for cutting down purposeful activity including training and studying. Perth also includes a social hub, a bike repair workshop which works with outside charities, a recovery café for those with addictions, and a learning centre. Inmates are called ‘residents’ and attempts are made to recreate as much as possible the outside world’s regime of ‘work in the day and recreation in the evening’’.
And the infamous Barlinnie is also going to be replaced by a new HMP Glasgow, where inmates will be called ‘residents’ and cells ‘houseblocks’. An entrance plaza will have amphitheatre seating and residents will meet visitors in a garden with benches and tables. The prison gardens will use ‘biophilic design’ to connect people with nature within built-up spaces. A horticulture area is included, as well as a full-size sports pitch, plus bird and bat boxes, an outside gym and a health and wellbeing garden. The prison will be more like a campus or hotel but will continue to track prisoners using the latest smart technology.
Soft Touch Justice?
Scotland’s justice system was revealed when a man with 189 previous convictions was jailed for five years and four months for an unprovoked attack on a Dundee taxi driver which left him severely disabled and needing round-the-clock care, probably for the rest of his life. When the victim refused to give him a cigarette, he pushed him and he hit his head off concrete, before his assailant followed up with kicking his head.
He even made it the victim’s fault for not giving him the cigarette. His 189 previous convictions included knife possession, drugs and road traffic offences.
Freed on Bail
The Scottish government plans to ease overcrowding in prisons by releasing on bail those who would otherwise be remanded. This is being criticised after it was revealed by Victim Support Scotland (VSS) that 11 people released conditionally went on to kill, with a further 189 attempted murders and six rapes or attempt rapes. Sheriffs would have to show a public interest reason for not releasing remand prisoners. VSS wrote expressing their concerns about releasing accused persons instead of remanding them to jail, saying it may lead to significantly increased risk, particularly in the case of violent and sexual crimes.
The government is also seeking to increase its powers to release inmates early for a variety of reasons including an outbreak of infections like covid, despite the fact that half those released during the pandemic went on to reoffend. They want this right to extend to a power to overrule parole board recommendations.
Legal Aid still under threat
Some areas of Scotland have reached the point where they have no legal aid lawyers at all. The only one in Orkney retires next month, Shetland has no civil legal aid cover, and Campbeltown has no criminal legal aid solicitor.
Much work that is necessary to pursue a case is simply not covered by the level of fees paid by the government, although they have recently agreed a package of £11million, making a total of £31m extra since April 2021, to try and deal with the crisis. The Law Society of Scotland’s Criminal Legal aid Committee convenor Ian Moir said the system is in crisis and solicitors are leaving ‘in droves’. None of the work recommended by a fee review panel in 2018 has been carried out or even started.
The problem has been worsened by a recruitment drive by the Crown Office and Procurator Fiscal service to deal with the backlog of cases caused by Covid, meaning many senior solicitors have left legal aid work to get a much better salary working for the prosecution.
The (UK) Strikes (Minimum Service Levels) Bill
was published recently, aiming to enforce minimum service levels being maintained during strike action in some spheres, including ambulances, rail and firefighters. But trade unions say the measures will be ‘undemocratic, unworkable and almost certainly illegal’.
Grant Shapps is framing it as ‘minimum safety levels’, despite the fact that in some sectors trade unions are already legally obliged to provide minimum cover. If enacted, the law will enable the Secretary of State to make sweeping regulations restriction the right to strike, affecting millions of workers in the NHS and emergency services, education, transport, decommissioning of radioactive waste and spent fuel and border security.
The new bill would give employers the power to sack striking workers and sue the unions for failing to ensure minimum service levels as set by the government. This measure was not included in its 2019 manifesto.
The right to strike is included in the International Labour Organisation’s regulations, but for the purposes of the ILO, safety levels have to be set by negotiation, not imposition, or established by an independent commission as in Italy. In France and most European countries, minimum service levels are established via collective agreements between employer and union, and while France guarantees continuity of public services, it does not rule out strike action. European countries have minimum service levels complying with standards set by the ILO.
Health Secretary Steve Barclay says any pay rise for striking health workers must be contingent on greater productivity and efficiency. What does that mean? Doctors and nurses working faster, making mistakes? No-one is striking for fun, but chronic decades-long underinvestment in the NHS means that staff face two choices – strike or burn themselves out and leave the profession.
In common with other MPs, Virginia Crosbie, who represents Ynys Mon in North Wales, has decided it is necessary to wear a stab vest at her constituency surgery. MP safety is something which is keenly felt following the murder of Sir David Amess in 2021, and Jo Cox in 2016. Ms Crosbie also employs private security at her surgery. Political representatives already get a security assessment and a package of alarm systems, shutters, CCTV and personal alarms. Many female MPs (and MSPs) are regularly threatened with violence including rape, bombing, and hanging.
Right to Anonymity for rape victims
It is mistakenly thought that victims of sexual crime have a right to lifelong anonymity in the UK, but this is incorrect, at least in Scotland. Reporting restrictions automatically kick in for
sexual cases in England, Wales and Northern Ireland, but not in Scotland, where a right of anonymity under the Contempt of Court Act is required when a case is under way. Ofcom regulations provide for a ‘gentleman’s agreement’ for broadcasters and newspapers not to identify victims without their express consent but it is not legally enforceable.
Scotland has a hybrid legal system from common law and other sources, developed from its Civil Law roots. To address the lack of protection for victims of sexual crimes, Andrew Tickell of Glasgow Caledonian University has launched the Campaign for Complainer Anonymity, and he and his team examined 20 common law jurisdictions, finding that Scotland is out of line with the rest of the UK and most common law jurisdictions, and may have the effect of preventing victims speaking about the crime committed against them, even if they want to. Only Ireland and New Zealand also allowed anonymity for alleged perpetrators.
Scotland has committed to including a policy of anonymity (possibly with exceptions) into a new Criminal Justice Bill due later this year.