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An issue of professional practice arises because of the policy of the Child Maintenance and Enforcement Commission (CMEC) – formerly the CSA – when dealing with solicitors. If you wish CMEC to speak to you about your client’s case, you will be expected to lodge your client’s mandate, ideally showing the client’s full name, address and postcode together with the client’s date of birth and national insurance number. In due course – sometimes it can take well over a week – CMEC will register that mandate, after which time CMEC staff will be prepared to speak to you about your client. If you telephone them about your client, they will demand that you should give them your client’s full name, address including postcode, date of birth and national insurance number together with the name and date of birth of one of the children in the case. That may be fair enough – as far as they are concerned you could be anybody at all and you should have to prove that you have at least that information about your client. They say that they are forced by the Data Protection Act to ask that information before speaking to anybody on the telephone. Inviting breach of duty What is not fair enough is that when www.lawscotjobs.co.uk Professional briefing Family Sauce for the gander? Some inconsistencies in CMEC practice could lead to inappropriate disclosure of information CMEC telephone you to discuss your client’s case they insist that you give them the same information before discussing your client’s business. This is, of course, a nonsense. When they telephone you they, as far as you are concerned, are a disembodied voice who could be anybody. When challenged on this point CMEC tend to say “But we are CMEC”, as if the mere averment were a magic spell which made the Data Protection Act and our professional duty of confidentiality disappear. The more sinister aspect of this is that an ill intentioned third party could telephone your office claiming to be from CMEC and ask for your client’s personal details. If you were to give them these details, that individual could then telephone CMEC and gain all sorts of information about your client’s business. This matter has been referred to the Professional Practice Committee who have ruled that any solicitor who does reveal that information to somebody who telephones without vouching who they are will be in breach of the professional responsibility of confidentiality. I have referred that matter to CMEC at a reasonably high level and although the officials accept that the present policy is illogical, the policy has not yet been changed. Watch this space. In the meantime, you should not give your client’s details such as national insurance number and date of birth to anyone claiming to be from CMEC. Dangerous heresy Finally, a novelty meme has infected some areas of CMEC practice. I have been told that CMEC are not allowed to speak to me unless they have my own national insurance number, and that their computer system is unable to accept my client’s mandate in my favour unless it includes that number. Even by the standards of CMEC this is remarkable. If you ever come across this sort of thing, please let me know, and also contact the complaints department of CMEC in Falkirk. There is no requirement for any solicitor to give his or her own national insurance number – there never was – but once an idea like that gets into an organisation like CMEC the infection can be viral rather than bacterial: very difficult to remove completely. Generally, CMEC has been making real efforts to improve its performance. The removal of the requirement for benefit claimants to apply for child support and, more importantly, the new 100% disregard which has applied since April this year are only the most obvious improvements. Anecdotally, the attitude of CMEC staff towards solicitors and their clients has become less adversarial and more professional. We can only hope that that improvement will continue – there’s still a fair way to go. John Fotheringham is a consultant to Fyfe Ireland LLP, Edinburgh and Glasgow. July 2010 theJournal / 45
Professional briefing Charities A private bill now passed by the Scottish Parliament has shown up a need to review the law regarding charity reorganisations Acts of kindness The enactment of the Ure Elder Fund Transfer and Dissolution Act 2010 offers an insight into the promotion of private legislation, as well as reorganisation of charities under the Charities and Trustee Investment (Scotland) Act 2005. Private legislation The Ure Elder Act is a relatively rare example of a “private” entity promoting legislation. Scott Wortley’s 24 December 2009 posting on Scots Law News offers a succinct overview of Scottish private bills following devolution. Such measures seek to do something in excess of the general law as it stands; in the case of the Ure Elder Act, to effect a statutory transfer of assets and liabilities and repeal previous legislation. It is important for promoters to establish the reasons for such objectives and for resorting to legislation. Effective pre-introduction consultation is at the heart of this. Perhaps the central document to the procedure is the promoter’s memorandum. This details the bill’s genesis, its objectives and how these will actually be implemented, seeking to explore more fully and accessibly the statutory language deployed. Its importance is underlined by the need for the promoter to explain to the parliamentary bill committee the bill’s objectives, coupled to the reasons why the promoter embarked on legislation. Once the committee has heard evidence it will report to the Parliament. The report will be considered at a preliminary stage debate and the bill will then undergo consideration stage (if required) and final stage before being passed. It is likely that the preliminary stage report will be the most detailed examination of the bill. It also offers the committee the opportunity to make general observations and recommendations. The Ure Elder Bill committee did so in the context of the methods of reorganising charities. Charity reorganisation The Ure Elder Act is the first of its 46 / theJournal July 2010 kind since OSCR assumed its full regulatory role. It is guaranteed not to be the last, following the introduction of the William Simpson’s Home (Transfer of Property etc) (Scotland) Bill. Due to the future likelihood of charities created by statute seeking to promote private legislation, the preliminary stage report appropriately raised the issue of methods available to charities to reorganise. Its conclusion that statutory charities should not always need to promote private legislation leads one to consider the reorganisation provisions in chapter 5 of the 2005 Act. Chapter 5 provides a system for charities to alter their constitutions, where these do not provide the trustees with a route to make the desired amendments. Section 42(5) states that the provisions do not apply to charities constituted by an “enactment”. The accompanying explanatory notes underlined the apparent intention to maintain the position of the legislature in relation to certain charities. Cross and Ford’s annotations to the Act neatly describe that s 42(5) “avoids usurpation by either OSCR or the Court of Session of the role of the Privy Council... or of the legislature”. However, s 42(5) is subject to an exception that the “governing body”, i.e. the trustees, of an “endowment” under the Education (Scotland) Act 1980 may use the reorganisation provisions. The definition of “endowment” (“any property, heritable or moveable, dedicated to charitable purposes”) leads to an unhappy relationship between the 1980 and 2005 Acts, one that could significantly widen the scope for charities to reorganise in a manner not envisaged under the 2005 Act (and other regulatory requirements that may apply to specific charities). A wide definition could lead to the place of the legislature being set aside for all charities governed by statute. This seems far from what the 2005 Act intended. The reorganisation provisions are largely based on ss 9 and 10 of the Law Reform (Miscellaneous To provide clarity to all concerned, the reorganisation provisions should be fully reviewed. The rules need to provide a flexible OSCRled process for the vast majority of charities Memorial to a pioneer Provisions) (Scotland) Act 1990. These sections proved not entirely satisfactory in practice (see, e.g. Mining Institute of Scotland Benevolent Fund Trustees, Petitioners 1994 SLT 785), and the current provisions are an improvement, due in many ways to the manner in which OSCR’s team deal with chapter 5 applications. However, they could themselves be improved. The Public Services Reform (Scotland) Act 2010 makes some welcome amendments, but these address very specific problems rather than provide a systematic and coherent updating. To provide clarity to all concerned, the reorganisation provisions should be fully reviewed. The rules need to provide a flexible OSCR-led process for the vast majority of charities, while respecting the Privy Council and Parliament’s roles. Replacement of the reorganisation parts of the 1980, 1990 and 2005 Acts with a coherent, single set of rules within the 2005 Act would appear the most appropriate way. Alan Eccles, Associate, Maclay Murray & Spens LLP Alan Eccles writes: “The Ure Elder Act provides an opportunity to acknowledge the endeavours of Isabella Elder, whose will created the Ure Elder Fund and stands testament to a lifetime of ground-breaking programmes, particularly in women’s education. For those interested, I recommend Dr Joan McAlpine’s The Lady of Claremont House: Isabella Elder – Pioneer and Philanthropist (1998).” www.journalonline.co.uk
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Page 7 and 8: Letters Should we resist ARTL dikta
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