Whose prerogative is it anyway? Britain’s referendum to withdraw from EU draws constitutional legal challenges*

1. Introduction

On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The
United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.

Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.

2. R (Miller) v Secretary of State for Exiting the EU

In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)?  The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.

This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court.  Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”

a. Royal Prerogative

The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.

b. Parliamentary Sovereignty

In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’  implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

2. EU Referendum Act

The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015.  The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.


3. Article 50 TEU: Withdrawing from EU

Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).

4. Looking forward

The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.

The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.

Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.

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*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)

Tyranny of the majority: Is secession a justified response?

From Colorado counties proposing secession to Crimea voting to break-away from Ukraine; and from Venice adopting unofficial independence status to Scotland wanting to dissolve the 307 year-old marriage with England – Who’d have thought we are living in an age of social contract renewal?

Over the past four months – majorities in 5 out of 11 counties voted to become the 51st US State; an

unbelievable 96% of Crimeans voted to join Russia; 89% of Venetians voted to create independent city-state within Italy; and in September Scottish voters will take to the polls to decide whether to become a free and independent country.

Opponents of these secessionist movements have quickly taken to the bully pulpit to point out the unconstitutionality of these votes. What if it’s illegal to vote for smaller regions, such as a county, to secede from lager entities, such as states or nations? Does a law make separatists feelings “go-away”?

Secessionist ideas do not begin at the ballot box or in a parliamentary chamber. The ideas of dissolving the bands that tie one region to another begin with disaccord and minority dissatisfaction – tyranny of the majority. Where one political party dominates and punishes the opposition or one geo-cultural group forces its views onto another.

Under the US Constitution, no mention is made of an acceptable dissolution of the union. The Civil War and the Supreme Court’s decision in Texas v. White (1869) arguably established the Constitution ordained a perpetual and indissoluble union.

In 1776, when the founders declared independence from the United Kingdom, that act was in violation of the British Constitution’s supremacy of parliament. If there had been any doubt of Parliament’s authority, The Declaratory Act of 1766, which asserted the right of Parliament to legislate for the colonies "in all cases whatsoever," would have settled the question.

To consider our founders revolutionaries seems abhorrent. The situation was an impasse, Parliament told the colonists to ‘go pound sand’ and the colonists responded by crafting a legal justification based on social contract theory, tyranny of the majority, and natural law.

Colorado counties which proposed secession; orange is where measure passed. 

As for the Colorado counties wanting to follow the West Virginia Model, that dream ended when the 69^th Colorado General Assembly adjourned on May 7^th.

Under Article 4 §3 of the US Constitution, no new state can be created from within an existing state without the consent of both the state’s general assembly and Congress.

Without the Colorado legislature taking action, our state will remain intact. Remaining united is not to say the dissatisfaction with the Democrats who control the governor’s office and legislature has gone away.

Similar to Colorado, the Crimea and Venice referendums were a protest to majority tyrannizing the minority. Unlike Colorado, Crimea’s vote was unconstitutional. Venice’s ballot was unofficial.

The Ukrainian Constitution specifically states in Article 73: “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.”

Many have argued the Crimea referendum was illegal according to Public International Law.

Firstly, under the Montevideo Convention on the Rights and Duties of States (1933), four requires must be satisfied to be considered an independent nation: permanent population, a defined territory, a government, and the capacity to enter into diplomatic relations.

Secondly, a country must be recognised by another country.

Crimea, a peninsula region in the Black Sea. 

The Crimean referendum asked voters whether they wanted to join Russia as a federal subject or restore the 1992 Crimean Constitution which granted greater authority to the regional parliament. With 83% voter turn-out, 96% voted in-favor of joining Russia. This act was certainly illegal under the Ukrainian Constitution, but as for International law, the jury is still out.

The Venice ballot asked voter whether they wanted to secede from Italy and become and independent city-state. With 65% of the region voting, a whopping 89% or 2.1 million people voted in-favor of breaking away from Rome! The Italian Government had no fear of Venice actually breaking away, as the referendum had been unofficial.

Much like rural Colorado having difficult with Denver listening; Crimea has a Kiev problem; Venice a Rome problem; and Scotland, an English problem.

On September 18^th, Scots will take to the polls to decide their fate. Legally, Scotland has the same problem the American Colonists had with the British Constitution, namely the supremacy of parliament.

The UK Parliament in London has the ability to enact or resend any legislation, including the grant of independence. The Edinburgh Agreement, merely a gentleman’s handshake, is where the UK Parliament has pre-agreed to acquiesce to the outcome of the referendum.

While the votes remain to be cast, one thing is certain, laws banning secession don’t make secessionist ideas go away. Revolution and civil war should be avoided. Elections, whether official or unofficial; lawful or unlawful should be a wake-up call to majority-leaders who are unwilling to respect the ideologies, customs, or traditions of minority constituencies.

Hickenlooper's new trademark more than just a beer coaster

This past summer, Gov. John Hickenlooper unveiled a new ‘trianglized-licence plate looking’ trademark to market the State of Colorado nationwide and overseas. More recently, State Rep. Bob Rankin (R-Glenwood Springs), introduced legislation to have the people decide whether they want a new logo for Colorado.

Colorado's new federally registered trademark

A week ago, H.B. 1017 was killed by the Democrats, on a party line vote, in the House Business, Labor, Economic and Workforce Development Committee.

Rep. Rankin fell short of promulgating the negative legal consequences Hickenlooper’s new trademark may have on Colorado businesses. To begin, we need to first understand some basics of American trademark law.

 

A trademark is a word or phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from others in the market place. The main purpose of a trademark is to designate the source of goods or services. Therefore, a trademark is something that only exists with respect to some commercial activity.

Trademarks can take one of three forms: standard character format; stylized/design format; or sound mark. For example, the word: “Coke” is a standard character mark, which means any style or symbol with the word “Coke” is protected under the Lanham Trademark Act of 1946. The Coke bottle-logo is a good example of a stylized/design mark. And yes, the roar of the Harley-Davidson engine is a protected sound mark.

When federally registering marks with the United States Patent and Trademark Office, a class of goods or services must be indicated. Going back to the “Coke” example, the Coca-Cola Company has registered the use of the Coke mark on everything from clothing to toys to food and drink products.

A quick search of the USPTO shows that Hickenlooper’s trademark is registered as a standard character mark, which means that the trademark owner has an obligation to pursue any individual or entity that uses the words: “CO” or “Colorado” on any “Clothing, namely, tee shirts, sweat shirts, polo's, hats, and jackets.”

In layman’s terms, Hickenlooper has successfully stifled private businesses in Colorado who make a living putting the word “Colorado” on a t-shirt and selling it to tourists. In other words, the state is now a direct competitor in the intellectual property arena with Colorado businesses.

In order to avoid open licencing, the State of Colorado will be forced to send hundreds of cease-and-desist-letters to small business across this state who dare infringe upon the state’s intellectual property right.

The second registered class which Hickenlooper is claiming is for “promoting public awareness about Colorado itself, and public services offered through Colorado state government entities, as well as promoting products and services originating from Colorado businesses and organizations.” Here, the state may have a legitimate interest, but the question still remains, why are they claiming a mountain of rights, when they really on need a hill?

The USPTO search also revealed the registered owner is not listed as the State of Colorado, but as Brand Colorado, a division of Colorado Nonprofit Development Center, which is located in Boulder. Shouldn’t the trademark owner be an actual state entity, such as the Colorado Tourism Office?

The Hickenlooper Administration’s effort to replace the Colorado State flag and seal with a trendier brand/trademark circumvents the reason for emblems of state. The current state trademarks – the flag and seal – identify and distinguish the source of state services / goods for the public. Additionally, each agency has its own trademark to indicate to the public the services they offer.

Creating more official trademarks to represent the State of Colorado blurs the distinction of which trademark represents, which is the source of the services. In other words, more marks confuse the public about which one actually represents the State of Colorado.

This past summer I was at the US Open Tennis Championships in New York and saw a man with a ball cap and Colorado flag on it. I asked him if he was from Colorado, as it is always great to see fellow Coloradoans when outside the state. He told me he had just spent a week holidaying in Aspen and thought we had a really cool flag design. Perhaps this New Yorker was not the target of the new trademark marketing campaign.

During my time in Edinburgh, Scotland, it was quite common to see tourists with stylized Colorado gear, mostly an artistic version of the red “C” with fields of blue and white. Of perhaps all the states, Colorado has one of most iconic and memorable flag-trademarks and adding a new mark only serves to block intellectual property fields which should be in the hands of the private sector.

Adding a new trianglized-licence plate looking trademark to the state’s intellectual property portfolio only serves to confuse the general public on which mark actually represents the State of Colorado. Additionally, Hickenlooper’s mark fails the state’s real objective, which is to market the state to tourists, businesses, and investors. 

Re: The U.K. faces a bad breakup

Lord George Robertson’s Jan. 6th opinion editorial in The Washington Post completely ignored Scotland’s legitimate right to be free of English tyranny. During my 3 1/2 years of study at the University of Edinburgh, I supported the Free Scotland Movement and participated in the rally featured in the column’s photo.

In 1783 the America seceded from England after winning a bloody Revolution, so why then can’t Scotland

peaceably secede in 2014?

Eight hundred years ago at the Battle of Bannockburn, Scotland won her first major victory against the English. In a modern era, nations should be free to peaceably dissolve the bands that chain one to another. A democratic vote is not re-Balkanizing Europe; the Romans struggled to reign in the feudal estates.

The 670-page Blueprint for Scotland, carefully crafted by academics and policy makers, is the most comprehensive guide to independence ever written. The “Better Together” proponents, such as Lord Robertson, have merely mocked the Blueprint.

The problem is that London dictates how Scots should live their lives. The Scots are overly taxed, overly regulated, and the English openly discriminate against the Scottish people. That is why Scotland deserves to join the United States in be free of English rule.

A people should be free to determine their own destiny.

Edinburgh to Berwick-Upon-Tweed: 60 mile bicycle ride

60 mile bicycle (97 km) ride from Edinburgh to Berwick

Tim, Ben and I riding into England

Yesterday I went for a 60 mile bike ride from Edinburgh to the northern most English city of Berwick-Upon-Tweed with two friend (both English) from the LL.B. programme. About halfway, near Dunbar, Scotland, I hit a curb while changing from the road to a bike path and went flying off my bike. My arm, hip and ribs were good and bloody, but we used our combined first aid kit and then went to an injury unit of the NHS (National Health Service) nearby. I only took off multiple layers of skin and didn't break anything, but had managed to get oil, dirt and gravel mixing into the wound. After getting patched up in multiple bandages and plasters we were off again to our destination. It was very breath taking ride, as we rode along the coast and could see the North Sea and rolling farm land all the way. Once we arrived in Berwick-Upon-Tweed we walked around the town and toured a few old buildings, then had a couple pints of English ale and a pub dinner to celebrate our accomplishment, then hopped the train back for Edinburgh.

riding into Northumberland

Today I have been recovering from the fall and soreness of mussels, as my bike is a 1970s 2 speed Dutch bicycle and I ended up using a lot of leg power going up the hills, whereas my friends had 15 speed bike which were quite new and made of light weight material, yet I was impressed with how I not only kept up, but was able to ride 60 miles. I have also been watching the Roland-Garros (French Open) men's final between Federer and Nadal on the BBC iPlayer (watching TV live stream on the Internet). 

Climbing Ben Nevis, hiking the Highlands & touring Isle of Skye

Summit of Ben Nevis with friends Marco & Brett

Last weekend I went with some English and Italian friends to climb Ben Nevis, the tallest mountain in the British Isles and then to see the Scottish Highlands and the Isle of Skye. The climb was amazing, as we started at sea level, as the mountain is next to a tidal loch and climbed (walked) to the top. The weather changed rapidly and went from sunny to pouring rain to hail and finally snow. The mountain (4,409 ft tall) is barely a hill for Colorado standards, yet it has claimed more lives than Mount Everest. As a matter of fact, one person died on the top the day after we summited. Our group was seven and we had planned to encounter the elements so we took winter and waterproof gear. The wind along the way was up to 57 mph, which at times made me feel quite cold, but the views were amazing during the walk up to the top. 

Eilean Donan Castle

After summiting Ben Nevis we drove to Eilean Donan Castle, which is located in another tidal loch (at the intersection of Loch Alsh and Loch Duich) with links to the Sea of Hebrides and The Minch. The castle was built in the mid-1200s to prevent Viking attacks and to safeguard trade routes. The castle was partially destroyed during the Jacobite uprising in 1719. The castle may have been rebuilt earlier, however the nobleman who owned the land had volunteered to teach the American rebels a lesson and was subsequently captured and died in an American POW camp after being captured in October 1780 at the Battle of King's Mountain (South Carolina). In 1911, MacRae's grandson, Lt Col MacRae-Gilstrap, acquired the property and had the castle rebuilt as the headquarters for the Clan McRae. MacRae-Gilstrap placed the property into a charitable trust (Conchra Charitable Trust) to avoid death taxes and capital gains on his heirs and for the benefit of the public and preservation of history and heritage. The castle is reserved for a two week period during the year for the exclusive use as a summer cottage for Baroness Miranda van Lynden and Maj Gen Alistair Stewart. Eilean Donan is idyllic Scotland, as it is situated in a loch, with rising highlands and moors surrounding the magical castle with heather and gorse on the bonnie banks of the brae.

view of Scottish Highlands from Plockton

From Eilean Donan we continued driving the A87 to Plockton, a small fishing and holidaying village which is in the situated with vistas of both Scotland's Highland mountains and the Isle of Skye. It has tidal or sea lochs on one side and the Hibernian Sea on the other. I included a photo from this village (it is the one with the fishing boat and houses and highlands). One of the girls suggested we do a ceilidh (traditional Scottish dance), being that I knew a few steps I was persuaded to led out. Some neighbours watching us out their window came running to join and pretty soon we were doing multiple dances and more and more people joined till our original seven had grown to 14! It was unbelievable - I have never seen such a thing, but in the movies - Plockton is definitely a special place and for the few hours we were there felt like a little Heaven on Earth. 

Red Cuillins on the Isle of Skye

On the Isle of Skye we hiked in the Cuillin hills toured the Talisker whiskey distillery - the weather was brilliant and did not produce any rain! Talisker was a lot of fun and was the only tour I've been on where they gave you samples before and after and the locals asked you to describe Colorado. I should be getting paid for the marketing and publicity I give my home state while travelling ;-) The whiskey was very good, as it had both a hint of peat and the smoky arromas and smell of sea mist. The Cuillins are divided into the reds and blacks, based on the minerals in the rocks. The odd thing is that only a glen separates the reds from the blacks (the photo of me hiking is from the Cuillins). Skye was also very beautiful and in classic Scottish tradition, there are not many trees and what trees there are were imported from the United States over the last 150 years. The Scots like to say there were trees on all the hills, but the English burned them or cut them down to build the Royal Navy of the British Empire. This is not accurate, as much of the lands are too acidic for trees and bog land is good for peat, but does not produce a stable environment for forests. That said, it is speculated that the result of baron hills is from making range land for cattle and especially sheep and that just like the rain forests in Brazil, when the forests are cut down, they are never able to be replaced due to the acidity of the soil. I don't know if I believe this, but it is a theory. None the less, the treeless Highlands have become a trademark of Scotland if forests could be re-grown, they would defeat the image Scotland has sold for the world for the last 300+ years. 

hill walking in the Highlands

Upon arriving back in Edinburgh I have kept busy by researching about the law of Maritime Piracy, as I am looking to publish and article on the topic and played several games of tennis, along with playing tourist by climbing the Admiral Lord Nelson Monument which was built in Edinburgh to commemorate the victory of the French Navy at the Battle of Trafalgar. I went with an American-French friend who pointed out that the story was completely different than what his mother had taught him. I have also been trying to plan gaps in my summer and catch up on unreturned emails and possibilities for post-bar internships. 

It's time to simplify the tax code & reduce governmental spending

With over 30,000 pages in the UK tax statutes it is time for parliament to tackle the ever burgeoning and convoluted mechanism for growing the governmental Leviathan and redistributing wealth. What modern social states like Britain and France and even the United States fail to grasp is that one must create wealth before you can re-distribute it.

Some argue that since paying taxes, by sheer definition, is inherently unfair, then the net should be cast wide to speed the pain equally. In other words, taxing or creating fees, surcharges, tariffs or levies for everything from income to interest earned from a bank account or building society; from tobacco and alcohol to bread and cheese; and from corporation tax to inheritance (death) tax.

The UK saw its highest tax rate in 1966, when the Labour government of Harold Wilson ushered in a 134.25% tax rate. This outraged George Harrison of The Beatles, who was affected the 95% super-income tax bracket, that he composed the music and lyrics for the ‘Taxman’, as a form of revolt. The Beatles band recorded the song in April and it was released in the album, ‘Revolver’ in August 1966.

 Tolly's UK Yellow Tax Handbook 2010 being burnt in protest

Many criticise the Thatcher-Major era as being ‘soft’ on taxing the rich and giving away government assets to private industry. The critics fail to acknowledge the quantitative data. The highest income tax bracket was 98%. Stated differently, for every £1 a person earned, 98p was going to the government. Today, the highest income tax bracket is 50%, which took effect in assessment year 2010 and catches individuals earning over £150,000 per annum. Under the New Labour government of Tony Blair, much of the neoliberalist economic policies of the Thatcher-Major governments were continued. This led Labour MP, Peter Mandelson to coin the term “Neo-Thatcherism” to describe the economic policies of New Labour.

Neoliberalism is a school of modern political theory which stresses market-driven approaches to economic and social policy, based on neoclassical theories of economics, which advocates efficiency of private enterprise, liberalization of free trade and open markets, and encouraging consumer free choice, individual thinking, and private enterprise. The tenets have frequently been a topic of conversation at Bohemian Grove. The ‘Washington Consensus’ is considered the theory’s definitive statement. International organizations such as the International Monetary Fund (IMF), World Bank, and World Trade Organization, along with regional trade associations such as the North American Free Trade Agreement (NAFTA), Association of Southeast Asian Nations (ASEAN), the Southern Common Market (MERCOSUR), and the European Union (EU) have endorsed the general principles of the theory.

National tax policy should encourage innovation and efficiency. Jobs must be created, at the core is build and maintain a strong and vibrant middle class, which broadens the tax base and brings stability to volatile global markets. The UK tax statutes are so complicated that while everyone in society gets caught by the tax ‘net’ burden, the lofty weight of a growing public sector places high demands to grow the public coffers. Government must learn to do more with less. A focus should be on prioritization of national policy objectives and efficiency placed at the heart of society’s vision and mission. An athlete performs best when he/she is in lean and well trained. Likewise, a government who learns to operate on less is able to understand the benefit of competition and getting quality.

One of the most efficient governmental organizations is the EU, which operates on a relatively small budget and meagre staff, yet the data they produce is unprecedented when comparing to national governments. An example is a student who is living on a shoe string budget is able to do far more than a professional paid a monthly salary. Why? The student understands the value of every pound-sterling and looks for the cheapest option (eg- riding the bus as opposed to the train, sleeping in a hostel compared to a 5-star hotel, et cetera et cetera). If governments operated in the same manner, more money would be in the hands of the private sector to grow the economy and allow citizens more options with how to live their lives.

In protest of the UK’s and US's confusing and convoluted tax policy, I took part in a tax act protest, where students burned their tax statutes in protest. Please join me in supporting a simplification of the tax statutes - the first step towards creating a more just British or American society.

The Offside Goals Rule

The offside goal rule (doctrine of notice) deals with the consequences of fraud and applies to corporeal and incorporeal property which is capable of possessing a real right. The case law in this area stretches back to the 16^th Century (Stirling and White v Drummond [1582] Mor 1689), though attention was not drawn to this rule in law until Rodger (Builders) Ltd v Fawdry 1950 SC 483;Wallace v Simmers 1960 SC 255 and Trade Development Bank v Warriner and Mason 1980 SC 74 along with Optical Express (Gyle) Limited v Marks & Spencer plc 2000 SLT 644; The Advice Centre for Mortgages v McNicoll 2006 SLT 591 and most recently Gibson v Royal Bank of Scotland[2009] CSOH 14.

There is much academic debate as to whether or not the rule is good or bad law; if the former, then should be in the corpus of property and conveying law, or contract law, as the circumstances which give rise to such a rule are usually rooted in the contract. The rule has been given fundamental principal status in Burnett’s Tr v Grainger 2004 SC (HL) 19,^[1]in which Lord Rodger of Earlsferry referred to the offside goals rule in his opening paragraph.

“[T]he offside goals rule provides that a transfer or grant of a real right by A to C will be voidable if (i) A had already undertaken to transfer or grant a right in the same property to B (ii) that prior right was "capable of being made real" (iii) the grant to C was in breach of the prior obligation to B and (iv) C knew of that prior obligation or acquired gratuitously or at a material undervalue.”^[2]

If a party is to dispute another’s title, then they must demonstrate that the acquisition was defective on account of the transferee being in bad faith. “On this basis, the “offside goals” rule allows the reduction of a perfected transfer on proof of bad faith in the form of knowledge, actual or imputed, of the prior entitlement of another party.”^[3]

“If the owner of land agrees to grant a lease, but then sells the land before the tenant has gained a real right, the tenant may seek to invoke the offside goals rule if the new owner knew about the grant of the lease.”^[4]

“One difficulty with the offside goals rule is that a race to the register can only ever be a blind man’s race: one in which neither party knows who else might be running; the race is one against a ghost: the spectre of a trustee in sequestration. But, as I have indicated, as a result of the reforms that followed the Sharp v Thomson and Burnett’s Tr v Grainger saga, providing agents can get their act together within 28 days [(Bankruptcy (Scotland) Act 1985, s 31(1A) and (1B))] of delivery of a disposition from a natural person or other transferor that may be sequestrated, such a race can but rarely arise”, writes Dr Ross Anderson in his 9 June 2010 address to the Royal Faculty of Procurators 2010 Conveyancing Conference in Glasgow, Scotland.^[5]

University of Edinburgh lecturer, Scott Wortley, explains the offside goals rule has been given “detailed consideration by Professor Reid, The law of property in Scotland (1996) paras 695 - 700; Professor Carey Miller and David Irvine, Corporeal Moveables in Scots law (2nd edn, 2005) para 8.31, Ross Anderson in a valuable article "Offside goals before Rodger Builders" 2005 JR 277 (and an updated version in his Assignation (2008) paras 11-04 - 11-31, as well as my own discussion in 2002 JR 291 and in Professor McDonald's Conveyancing Manual (7th edn, 2004) paras 32-51- 32-62.”^[6]

It should be noted in football (soccer) an offside goal is void, whereas in conveyancing and property law an offside goal is voidable.

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^[1]2004 SC (HL) 19 at para 67

^[2]P Webster, ‘Options for the offside goals rule’ [2009] 13 Edin L Rev 524

^[3]DC Miller, ‘Title to moveables: Mr Sharp's Porsche’ [2003] 7 Edin L Rev 221

^[4]GL Gretton & AJM Steven, Property, Trusts and Succession (Tottel Publishing, West Sussex 2009) 263

^[5]R Anderson, ‘The offside goals rule in practice’ Royal Faculty of Procurators 2010 Conveyancing Conference 9 June 2010

^[6]S Wortley, ‘Offside traps - Gibson v Royal Bank of Scotland [2009] CSOH 14’Edinburgh Centre for Commercial law blog <http://www.law.ed.ac.uk/ecclblog/blogentry.aspx?blogentryref=7681> 9 Feb 2009 accessed 26 Apr 2011

Soper in London for Royal Wedding

On  Friday, 29 April 2011, I will be amongst the well wishers gathered outside Westminster Abbey in London to celebrate the wedding of HRH Prince William of Wales and Miss Kate Middleton. I will be travelling from Edinburgh to London with a former classmate of Prince William’s from St. Andrew’s University and staying with another good friend of mine in London! It should be very exciting to be part of such a monumental event!

Keith Drake, a family friend who has since passed away, reminisced about standing outside Westminster during the Coronation of HM Queen Elizabeth II on a sunny Thursday, 2 June 1953. Drake was in the military, stationed in Germany and had been granted leave to attend the historic event. Mr. Drake always said that if I was in Great Britain for a Coronation or a Royal wedding to not miss the opportunity to witness the fanfare, as it is a historical occasion and an overall exciting celebratory event.

It is expected up to 600,000 well wishers will be gathered along the route from Buckingham Palace to Westminster Abbey and an estimated two billion people will be viewing the wedding live via Internet, radio, or television broadcasts. The Royal wedding is slated to be the most-watched event in television history, topping the 1963 funeral of President John F. Kennedy, the Apollo 11 Moon landing in 1969, and the marriage of HRH Prince Charles and Lady Diana Spencer in 1981, along with the funeral of Princess Diana in 1997, the 2006 World Cup finals between Italy and France, and the opening of the 2008 summer Olympic Games in Beijing.

There will be 2,000 guests inside the Westminster Abbey, with only a couple hundred having a direct view of the nave, where the nuptials are to be exchanged. As the marriage is likely to produce an heir to the Throne, delegates from the 54 Commonwealth Countries who recognize the Monarch will be in attendance. Legally, according to §2 of the Union with England Act 1707, only heirs of Princess Sophia Electoress, who are protestant, may succeed to the Throne, thus the marriage is very appropriate in being a public event and witnessed by many.

England and Scotland have shared the same monarch since the Union of the Crowns in 1603, when King James VI of Scotland inherited the English Throne from his cousin Queen Elizabeth I, who produced no heir. Thus King James VI of Scotland became known as King James I of the United Kingdom. Politically the governments of England and Scotland did not merge until 1707, when the two parliaments dissolved and re-emerged as the Parliament of Great Britain.[1]
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[1] Mayfield, J. 'Former local to attend Royal Wedding' Colorado Radio 25 April 2011 <http://coloradoradio.com/2011/04/25/former-local-to-attend-royal-wedding/> accessed 25 April 2011

Lord Hope of UK Supreme Court addresses the notion of hearing Scottish cases in London

Over two-hundred law students, trainees, solicitors and advocates attended the inaugural annual lecture of the Scottish Young Lawyers’ Association. The keynote speaker was The Right Honourable Baron Hope of Craighead, KT, PC, QC, FRSE. Lord Hope is the Deputy President of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland along with being Chancellor of the University of Strathclyde in Glasgow. Lord Hope is arguably considered the 21th Century most eminent scholars of jurisprudence and is one of only ten individuals to have served on the final session of the Appellate Committee of the House of Lords and the inaugural session of the Supreme Court.

The lords of appeal in ordinary or Law Lords were physically moved from the chambers and halls the Parliament Building at Westminster to the newly created bench at Middlesex Guildhall, which is located between Westminster Abby and the HM Treasury Building. The House of Lords, which is the upper house of the UK’s legislative branch of government, served as the highest court of appeal from 1399 to 2009. The Law Lords used to hear appeals each day in the chamber of the House of Lords. During the Second World War the House of Commons was bombed and the Law Lords moved their hearings to a nearby committee room to escape the noise of the building repairs, constituting themselves as an Appellate Committee for the purpose. In fact, this temporary arrangement proved so successful that it became permanent, and continued until it was abolished and replaced by the Supreme Court on 1st October 2009.

Lord Hope’s speech was called, “Scots law seen from south of the border”, and focused on a comparison between the world when he began law school at the University of Edinburgh in nearly 50 years ago. He emphasised how much has changed, but said to long to go backwards is not the way forward and stressed how much better off students are today with a refined and long educational tenure to join the profession of law.

Lord Hope also mentioned how much technology has changed and how much more of a demand is on the profession for accuracy, efficiency and minimizing errors. His reflection of his career also included a bit of rye humour, as he said, “It was, of course, a different world in 1962. It was not quite the world of silent motion pictures, although many of the films were still in black and white. Sex had not yet been discovered. That did not happen until 1963, according to the poet Philip Larkin. Nor indeed had drugs. For the most part we did what we were told. As students we all wore jackets and ties and, unlike those who followed soon afterwards, we all had short hair cuts, unlike a few years later when Gordon Brown, the former Prime Minister, had hair down to his shoulders.”

The speech went on to address how the Supreme Court dealt with Scottish cases being appealed from Inner House of the Court of Session (unlike England, the Inner House has a right of appeal to the Supreme Court). Lord Hope spoke of the Scottish case, “Sharp v Thomson[1], which was followed a few years later by Burnett’s Tr v Grainger[2]. It was a case about personal insolvency. There the question was whether the house was part of the ‘whole estate’ of the debtor so as to be part of the estate which vested in his trustee in bankruptcy. The House of Lords distinguished Sharp and held that it did: the trustee does indeed take both the house and the money. Centuries of case law made clear which meaning was to be given to phrase ‘the whole estate of the debtor’ used in the Bankruptcy Act. It was made clear that there was no intermediate right between a personal and a real right, and that delivery of the disposition did not give rise to a trust, either actual or constructive, in favour of the buyer. By now the personnel in the House of Lords had changed. I was one of the two Scottish judges on that case, along with Lord Rodger. Lords Hoffmann, Bingham and Hobhouse made up the rest of the panel. Anyone who reads the opinions of Lords Hoffmann and Hobhouse will see that they felt strongly that the case should have been decided the other way. But they did not dissent. Lord Bingham, however, felt strongly that on an issue such as this – where there was genuinely a distinctive point of principle of Scots law – that if the Scottish judges reached a particular decision, it was not for him – unfamiliar with the system – to interfere.”

The final points Lord Hope made concerned the Cadder Case[3], in which the Supreme Court upheld the ECHR against the Scottish procedural rule of being able to interrogate a detainee for up to six hours without legal representation. He could not make too many comments, as there are five cases on appeal to the Supreme Court, which concern clarifying Cadder.

Lord Hope concluded by saying as long as the Scottish courts sent business down to London, then the Constitutional Convention of having two of the twelve justices on the Supreme Court coming down from Scotland and one from Northern Ireland would continue to be upheld. He did mention that if Scotland were to make the Court of Session the highest court in the land, then there would be no need for the convention to be sustained.

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[1] 1997 S.C. (H.L.) 66; 1997 S.L.T. 636; 1997 S.C.L.R. 328; [1998] B.C.C. 115; [1997] 1 B.C.L.C. 603; 1997 G.W.D. 9-364

[2] [2004] UKHL 8; 2004 S.C. (H.L.) 19; 2004 S.L.T. 513; 2004 S.C.L.R. 433; [2004] 11 E.G. 139 (C.S.)

[3] [2010] UKSC 43; [2010] 1 W.L.R. 2601; 2010 S.L.T. 1125; 2010 S.C.L. 1265; 2010 S.C.C.R. 951; [2010] U.K.H.R.R. 1171; (2010) 107(43) L.S.G. 21; (2010) 154(41) S.J.L.B. 30

Lord Advocate v Royal Bank of Scotland 1977 SC 155

Facts: Imperial Hotel (Aberdeen) Ltd barrowed a sum and granted a floating charge to the lender. Financial difficulties struck along with taxes due. The Inland Revenue (The Gov’t), who were owed £4,850 arrested Imperial Hotel’s bank accounts on 23 May 1974. As the financial position worsened, the lender appointed a receiver (Frank Mycroft) on 17 July 1974. Once the company went into receivership, the floating charge attached to all of Imperial Hotel’s assets, including the bank account.

Question for the Court: Who had priority to the bank account? Inland Revenue, who had arrested the accounts two months prior, or the receiver, Mr Mycroft? Did the floating charge trump the arrestment, vís-a-vís?

Held, the Companies (Floating Charges and Receivers)(Scotland) Act 1972 provided a ranking mechanism for priority as being that the receiver prevailed over the creditors unless they had “effectually executed diligence”. Arrestment is a form of diligence, however the court held it was only “effectually executed” if the arrestment had been followed by a furthcoming, prior to the floating charge attaching. Since this had not occurred, the First Division held the receiver prevailed over the arrester.

Analysis: This case is almost universally condemned by academic commentators. The reason why this case is criticize is illustrated by the following example: (i) a company’s bank account is arrested; (ii) the assignation of the company’s bank account to a third party is intimated to the bank; (iii) a receiver is called in and the floating charge granted by the company attaches to the assets; and (iv) the arresting creditor (arrester) seeks furthcoming. The order of ranking in this case is irresolvable, as the arrester takes priority over the third party. The third party takes priority over the receiver. As a result of Lord Advocate v Royal Bank of Scotland 1977, the receiver takes priority over the arrester. The arrester takes priority over the third party who takes priority over the receiver. This conundrum is referred to as a ‘circle of priorities’. The Bankruptcy and Diligence etc (Scotland) Act 2007, which amends the Debtors (Scotland) Act 1987 by adding s 73J, which provides that arrested funds can be released on certain conditions without an action of furthcoming. No judicial consideration has been rendered on this point yet.

The feudal system - in brief

Scotland is quite intriguing, as the feudal system was finally dissolved on 28 November 2004, which actually didn't amount to a major change as the case law and statutes had slowly been chipping away at the system since the 1740s.

An annual payment was due to the landlord along with the vassal being obligated to perform certain duties in law. These obligations were called "reddendo" and varied depending on the type of tenure. There were five main types. My favourite tenure was the "Mortification", where the vassal was the church and the service due was prayer (especially for the Superior's soul). It is not surprising this tenure was done away with during the reformation.

Feufarm was the tenure dissolved in 2004, as it was the one that remained. Originally I suppose the reddendo was paid in the form of goods from the farm. Though the reddendo (which is a general term) known as feuduty for feufarm, was paid twice a year on Whitsunday and Martinmas. The feuduty had to be converted into money and paid to the landlord. The concept was the Crown owned all the lands, then the Crown vassals (eg Dukes, Marquesses, Earl, Viscount and Baron) had sub-sub vassals and so on who all paid feuduties to the next superior above them. Prior to loans, this was the best way for people to "own" property, as they would pay a fraction of the value but would be obligated to make the two annual payments.

The cool thing about studying in a differnt country and jurisdiction is being able to make comparisons on what I know about Colorado property law and then comparing that to Scotland and the England.

Papal Visit of Pope Benedict XVI to Scotland

Today I possessed a front row seat to history being created, as Pope Benedict XVI became the first Head of State of the Holy See to visit the United Kingdom. In 1982, Pope John Paul II visited Great Britain in his role as Holy Father of the Catholic Church and thus did not meet with any members of Her Majesty’s Government or The Royal Family. At 10:30 AM the papal jet landed at Edinburgh International Airport and Benedict XVI was greeted on the tarmac by His Royal Highness The Duke of Edinburgh and the Royal Scots Guard. I first saw the Pope in the popemobile, as he travelled in a motorcade towards the Palace of Holyroodhouse, Her Majesty The Queen’s Royal Residence in Scotland.

At 11:00 AM the Pope was being given a State Welcome at the palace with all the members of the Order of the Thistle; the Deputy Prime Minister, Nick Clegg; senior members of the Royal Family and prominent member of British Society, along with the Lord Provost of Edinburgh. Pope Benedict XVI was then granted an audience with Her Majesty Queen Elizabeth II. During the State Reception for the Papal Delegation, I travelled by train from Edinburgh to Glasgow with the University of Edinburgh Catholic Student Union to attend the open-air Mass in the presence of the Holy Father at Glasgow’s Bellahouston Park. It should be noted that Bellahouston was the location where Pope John Paul II held the first ever Papal Mass in Great Britain back in 1982 to a crowd of well over 100,000 worshipers.

As the popemobile began a procession through the streets of Edinburgh at around 12:30 PM I was just entering the park with the Catholic Student Union and watched aerial scenes of the historic journey on the jumbotron. My presence at the Mass is directly attributed to the help of my friend Chiara, from near Milano, whom I studied with during my LL.M. and her friend, Brett, whom graciously looked after me during the pilgrimage and patiently answered my numerous questions regarding traditions, fundamental beliefs and history of the Catholic Church.

While the Pope and his official motorcade made their way from Edinburgh to Glasgow, the crowd was entertained by Susan Boyle, a native Scotswoman who rose to fame a couple years ago during the television show, Britain’s Got Talent, for her amazing vocal abilities.

At 16:45, Pope Benedict had arrived at Bellahouston Park and made his way to the pulpit where he prepared for the Holy Mass. It was at this point in time that I was less than five feet away from His Holiness Pope Benedict XVI as he made his way towards the steps. As the Entrance Procession made their way past the music of “Grace to you and Peace” and “Be thou my vision” played. It was a moment before this, when the Holy Father was vesting and the Strathclyde Police Bagpipe Band were playing “Amazing Grace” with a 1,000 member choir singing the classic lines that the magnitude of the event hit me and something inside acknowledged that I was observing something very special, which words would be feudal to describe.

A liturgy of the Word (an excerpt of The Bible), Romans 12:3-13, Psalm 22 and Luke 10:1-9 were read and in the Scottish tradition, a Celtic Invocation given. The Archbishop of Glasgow then gave the Pope an ancient book, written by St Ninian from the 4th Century. A prayer was said over the gift and a salute to the Feast of Saint Ninian, the Apostle of Scotland, born a Briton, but travelled to Rome and then back to faraway isle to spread the light of faith in Jesus. A Eucharistic prayer was read in Latin by the Holy Father and then the sermon was delivered. Since this was a Papal State occasion, the message was targeted to a much larger audience than the 60,000 gathered in Bellahouston Park. He said the future of Christianity is with the youth a point which I highly agree, though the latter portion of his talk focused on the negative effects of privatizing religion and the removal of the church from society – a premises which I find archaic and treading on dangerous consequences of religion becoming a tool of state power, rather than as a guide for the faithful.

The Mass ended and I celebrated the very special occasion with the Glasgow and Edinburgh University Catholic Student Unions in the tradition manner of wine, cheese and bread. It was rewarding for me to be party to such a monumentous and historic occasion and to have been witness to the first ever State Visit by the Pontiff of the Holy See to Great Britain and then to have been within an arm’s length of the Pope twice in a single day – once while he was wearing a tartan shawl to show his support for the Scottish people and the second time as he was fully vested for Mass. To those who read this account, peace be with you.

Iain McGill for Edinburgh North & Leith

Few candidates have dedicated their lives to more noble and worthwhile causes than my friend Iain McGill, who is running for the UK Parliament as a Conservative candidate from Edinburgh North and Leith. From a young age, Iain identified two social aspects of his home community of Edinburgh North and Leith which needed to be tackled – at-risk youth and homelessness. Iain has promoted sports as a way for keeping kids out of trouble and focused on their education, while helping those who are homeless find jobs, shelter and sustenance to assist them in getting back on their feet.

It is because of Iain’s day-to-day work that I whole-heartily give my endorsement for his candidacy. Many in Westminster come from elite Oxford or Cambridge backgrounds, having grown up with a silver spoon in their mouth, but not Iain. Between leaving education and setting up his own business in 2005, McGill served as an aid worker overseas, working in Albania, Brazil, Zimbabwe, Zambia, Mozambique & Malawi. Even Iain’s business, Harmony Employment Agency, is about helping others, as it is helps provide people jobs in the social sector across Scotland.

McGill knows firsthand that governments do not always get it right and that there is an appropriate place for the private sector within our society. Iain has demonstrated just what can good can be accomplished with people come together to help their fellow humankind. This was evident when Iain refereed the 2006 Homeless World Cup Final in Cape Town, South Africa which brought together many individuals to support a great cause – ending homelessness. One of Iain’s favourite activities (aside from politics) is working as director of The Yard, which is an Edinburgh charity that provides adventure play opportunities for children and young people with special needs.

Like all good Scotsmen, Iain enjoys playing/referring on an amateur football team and competing in decathlons and marathons, along with serving as an active member of the Scotch Malt Whisky Society.

Edinburgh: The 'must see' list

Recently I was asked by a friend what were 'must see' places in Edinburgh, I replied that it depended on what a person was interested in and how much time they were planning on spending in the city. I created a list in a non-particular order of places I would recommend seeing.

Important places to me would include:

Edinburgh Castle (the Mound)

Holyroodhouse Palace and Abbey (Holyrood)

Scottish Parliament (Holyrood)

The Royal Mile, particularly St. Giles Cathedral, the High Court, St. Mary's Close (viewable via a ghost/history tour) (Old Town)

Princes Street, particularly Jenner's (Edinburgh's version of Harrods) (New Town)

George Street, look for the RBS Headquarters in St. Andrew's Sq. (New Town)

Arthurs Seat and the Salisbury Crags (Holyrood)

Calton Hill (New Town)

Greyfriars Kirk and graveyard (famous for the Greyfriars Bobby story) (Old Town, near George IV)

National Museum of Scotland, look for William Wallace's sword (think Brave Heart) (Old Town, Chambers St)

Old College, University of Edinburgh (School of Law, Chambers St and South Bridge)

National Gallery of Scotland (below the Mood, near Waverly Station)

Princes Street Gardens (in-between Old Town and New Town, near Waverly Station)

George Square and the University of Edinburgh (Old Town, near the Meadows)

National Library of Scotland, always cool interactive displays which highlight Scottish history and literature (Old Town, George IV)

The Meadows (Old Town, The Meadows - between Morningside and Marchmount)

Grass Market, cool area of town, below the Castle to the south and west of George IV. (Old Town, Grassmarket)

Royal Botanical Gardens (New Town, Stockbridge)

Waters of Leith particularly Dean Village, the Dean Gallery, and the walk along the waters of Leith (New Town, Dean Village)

Craigmillar Castle - excellent castle where Mary Queen of Scots plotted with her nobles to kill her husband. It is a 30 min bus ride and not too famous, but it is a very impress castle in the south part of Edinburgh with a great view of the Edinburgh Castle and Salisbury Crags. (Craigmillar)

Holyrood Park (Holyrood)

Leith Docks, Victoria Quay - the Royal Yacht Britannia is there too, but over all if I were to miss something, this would be the area. It is fun if you go to the beach, or a pub in the docks, but over all Leith is not the best part of town, though it is a very historical area, as shipping made Edinburgh wealthy. (Leith)

Pubs are a must visit in Edinburgh with famous ones being the Sheep’s Heid (the Oldest pub, opened in 1320), the Advocate, Black Bull, the Waverly, Greyfreirs, Peartree House (great place to have a drink outside), Deacon Bodies, Beehive Inn et cetera. My advice - stay off the Cow Gate and remember the pubs on the Royal Mile (High St.) are pretty pricey as they are for the tourists, exceptions being the Waverly, which is an inexpensive and unchanged Edinburgh pub.

Modern/Cool pubs include: the Jazz Bar, the Music Bar, Under-the-Stairs, Frankenstein's, Opal Lounge, Brass Monkey, and Jekyll and Hyde.

Coffee shops are an also must stop, as beer, whiskey, tea and coffee are consumed in super unhealthy rates in Scotland. The Elephant House on George IV Bridge is where JK Rowlings wrote the first few chapters of Harry Potter and Antique Tea is where you can have real coddled crème scones and fresh tea in antique bone china cups! (it is also really affordable).

Night entertainment includes clubs (open till 3 AM), theatres, cinemas, concert and opera houses, loads of restaurants and pubs (open till mid-night or 1 if they have an extended licence) During August all clubs and pubs are allowed to be open until 5 AM.