Reviews of Freedom of Information in Scotland in Practice (Dunion); Commercial Leases (Cockburn & Mitchell)

Kevin Dunion

ISBN: 9781845861223
PRICE: £60

Remarkable to realise that 10 years have elapsed since the Freedom of Information (Scotland) Act (FOISA) received Royal Assent. Remarkable, too, to ponder what a sea change it heralded. Its short title is: “to make provision for the disclosure of information held by Scottish public authorities, or by persons providing services for them”. This book, written by the first Scottish Information Commissioner, provides a full and important study of the impact of the Act’s first decade.

The book comprises three main sections, plus an afterword with Mr Dunion’s personal views on the state of freedom of information in Scotland. The first half is an annotated version of the principal Act. The annotations are wide ranging, and contain ample reference to authorities from a variety of jurisdictions and to decisions made by the Commissioner. There are salutary warnings for solicitors. If making a request, remember that it must be clearly made on behalf of the instructing client, otherwise it may be deemed to be invalid.

Part II studies six key issues of interpretation which have arisen. This highlights many points of interest. There is an analysis of the Alexander case (Scottish Ministers v Scottish Information Commissioner [2006] CSIH 8), focusing on the disclosure of advice given to the Scottish Ministers in arriving at their decision. It analyses the important distinctions between class- and content-based exemptions.

Other topics of interest include the balance between FOI and individual privacy, and the relevance, if any, of the identity and motives of the applicant when a public interest based exemption is under consideration.

Part III contains an excellent summary of the process, more detail about the Commissioner’s role and a brief outline of best practice for public bodies.

The Scottish Ministers’ own code of practice is set out in full in an appendix.

This book would justify purchase for any one of its key parts. To have everything together in one volume, written with both intellectual analysis and attention to detail, make this one of the best books I have reviewed in some time.

2nd edition  

David Cockburn and Robin Mitchell  

ISBN: 9781847663177
PRICE: £48

The focus of the second edition of this book remains on issues that arise in the adjustment and negotiation of occupational leases of commercial property in Scotland. There have been a number of developments since the first edition was published in 2002, most notably the move towards more balanced documentation. That is a good thing.

The authors have produced an easy-to-read text which has a good mix of background law, both common law and statutory, fused with what you need to know when dealing with a commercial lease. There is a useful commentary on the Lease Code for England & Wales, and a review of the RICS Code of Practice on Service Charges with a focus on the Scottish edition which was introduced on 11 September 2007. See chapter 6.

Paragraph 2.44 gives a useful reminder about the need for asbestos audits, and paras 2.35-2.36 deal with the potential problem of back letters. Perhaps more could have been said about the issues surrounding enforceability against singular successors of the landlord, however. Green issues are also dealt with in various places, e.g. paras 2.60, 6.40-6.42, 9.47 and 10.11.

As I said in my review of the first edition of this book, it is a pity that more is not said about the tenancy of shops legislation and its operation in practice – see para 11.24.

Chapter 8 (rent review) has been expanded, which reflects the growing body of case law since 2002. Perhaps there could have been more reference to relevant articles, however. I was also surprised not to see a reference to the Arbitration (Scotland) Act 2010 in para 8.61 – the only reference to the statute being in para 2.59.

The authors' commentary on rescission in para 11.29 is a useful addition to the text.

Overall, this is a useful book for practitioners and students alike. It is not a detailed treatise on the Scots law of landlord and tenant, but this was never the intention. I am pleased to see that the second edition has been produced. It will be of particular assistance to solicitors who are new to commercial leasing and who wonder what to do when one lands on their desk.

The Author
Tom Johnston, Young & Partners, Glasgow & Dunfermline Stewart Brymer
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