Committee Archive 2013

To read the full written responses submitted by the Society to the Bills and consultations mentioned below, please refer to the Law reform consultations and Bills pages.

December 2013

Criminal Justice (Scotland) Bill

On 26 November, Raymond McMenamin from the Law Society's Criminal Law Committee, gave evidence to the Justice Committee on the proposal to remove the requirement for corroboration. He spoke of the Law Society's serious concerns about abolishing the requirement for corroboration without introducing alternative safeguards, stating that it will result in the risk of increased miscarriages of justice and threaten the reputation of Scotland's criminal justice system.

Murray Macara QC, also from the Law Society's Criminal Law Committee, gave oral evidence on the sentencing and appeal sections of the Bill on 19 November. He expressed the Society's concerns that the High Court doesn't have to quash a conviction or sentence, even when a miscarriage of justice may have occurred, on the basis that it is not in the "interests of justice to do so". The Society is concerned this provision could have serious consequences for those wrongly convicted of crimes.

Full details on the Bill and the Society's comments can be found here.

Financial Services (Banking Reform) Bill

The Society submitted four amendments on the Bill; the first set sought to clarify part 4 of the bill. In relation to clause 15, the Society wished to expressly exclude legal advice in "taking decisions, or participating in the taking of decisions", as this would erode the distinct professional relationship and obligations a solicitor provides to clients.

The Society also sought to clarify how clause 22 could impact on the duty on Scottish solicitors to maintain confidentiality and how it affects legal professional privilege more broadly. The amendments were tabled by Lord MacKay of Drumadoon QC and were withdrawn after assurances from the Treasury Peer, Lord Newby, that section 413 of the Financial Services Markets Act 2000 adequately protects legal professional privilege and the duty to maintain confidentiality.

The second set of amendments were tabled by Lord McFall of Alcluith and sought to increase protection for consumers who have entered into a contractual relationship with payday lenders.

Full details on the Bill and the Society's comments can be found here.

Tribunals (Scotland) Bill

The Society submitted three amendments to the Bill, which seek to 1) provide a definition of 'tribunal' 2) ensure the distinct characteristics of tribunals are protected and taken into account in the making of procedural rules and 3) that the existence of a mental health chamber is protected in primary legislation.

Full details on the Bill and the Society's comments can be found here.

Children and Young People (Scotland) Bill

Members of the Family Law Committee met with the Bill team to express serious concerns about the information sharing provision proposals in the Bill. The committee will be submitting additional briefing to MSPs on this issue at stage 2.

Full details on the Bill and the Society's comments can be found here.

Immigration Bill

The Society submitted written evidence on the UK Parliament Bill, expressing concerns about part 4 (Marriage and Civil Partnership) as it makes no provision for consultation with Scottish ministers or the Scottish Parliament. The Society is concerned that it could cut across the Sewel Convention and stated that it requires significant amendment to be made constitutionally appropriate.

Full details on the Bill and the Society's comments can be found here.

Anti-social Behaviour, Crime and Policing Bill

The Family Law Committee responded to the Justice Committee's call for evidence on the forced marriage provisions contained in a Legislative Consent Memorandum on the Anti-social Behaviour, Crime and Policing Bill. The committee expressed the view that although it believes the Scottish Government is bound by the terms of the Istanbul Convention which provides for the criminalisation of the "intentional conduct of forcing an adult or a child to enter into a marriage" it is disappointed that the decision to legislate to criminalise forced marriage was made by the UK Government following consultation in England and Wales but not in Scotland, thereby failing to take account of our distinctive legal background in this area. The committee has asked to know what consultation the UK Government carried out with the Scottish Government before finalising the Bill and why wider consultation on its proposals was not carried out.

Full details on the Bill and the Society's comments can be found here.


November 2013

Criminal Justice (Scotland) Bill

Grazia Robertson, from the Society's Criminal Law Committee, gave oral evidence on 1 October to the Scottish Parliament on the Criminal Justice (Scotland) Bill, questioning plans to create two categories of arrested person. The Society considers that the current system of arrest and detention is already compliant with the European Convention of Human Rights and is working well.

The Society will provide further oral evidence on proposals in the Bill to abolish the requirement for corroboration on 26 November. The Society considers that the requirement for corroboration should not be abolished without the introduction of equally robust safeguards to prevent the risk of miscarriages of justice in Scottish courts.

Full details on the Bill and the Society's comments can be found here.

Bankruptcy and Debt Advice (Scotland) Bill

Rachel Grant, from the Society's Insolvency Law Committee, provided oral evidence on 30 October to the Scottish Parliament on the Bankruptcy and Debt Advice (Scotland) Bill, highlighting the Society's concerns about the transfer of a large number of functions from the courts to the Accountant in Bankruptcy. The Society is particularly concerned about the significant potential for conflicts of interest.

Full details on the Bill and the Society's comments can be found here.

Scottish Independence Referendum Bill

The Society submitted five amendments on the Independence Referendum Bill, which were subsequently tabled and passed. The amendments will ensure that the Bill is consistent with earlier legislation on referendums contained in the Parliamentary Voting and Constituencies Act 2011. One of the amendments also clarified the basis on which a Chief Counting Officer may be removed.

Full details on the Bill and the Society's comments can be found here.

Lobbying Bill

The Society wrote to Scottish Peers concerning the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill. The Society highlighted its concerns about part 2 of the Bill, stating that it will increase the regulatory burden on charities, which could deter them from engaging in public policy debate and discussion.

Full details on the Bill and the Society's comments can be found here.

Transparency and trust discussion paper

The Banking, Company and Insolvency Law Committee responded to the UK Government consultation paper on proposals to enhance the transparency of UK company ownership and increase trust in UK business.

The Society welcomed many of the proposals; however, we considered that the suggestion to amend the Companies Act 2006, to create for banking directors a primary duty to promote financial stability over the interests of shareholders, would be difficult to operate in practice. The Society considers that banking regulators are best placed to determine issues of "financial stability", rather than lawyers and courts.

More details on the consultation paper and the committee's response can be found here.


October 2013

Criminal Justice (Scotland) Bill

The Society submitted written evidence to the Scottish Parliament's Justice Committee, reiterating our concerns about proposals to abolish the requirement for corroboration in criminal proceedings. The Society warned that removing the requirement for corroborated evidence, without including sufficiently strong safeguards in the Bill, could result in a contest between two competing statements on oath and, as a result, bring increased risk of miscarriages of justice.

Full details on the Bill and the Society's comments can be found here.

Lobbying Bill

The Society wrote to Scottish MPs concerning the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill. The Society warned MPs that the Bill would not significantly increase the transparency of lobbying activity at Westminster and could stifle legitimate public debate.

Full details on the Bill and the Society's comments can be found here.

Draft Deregulation Bill

The Society submitted written evidence to the UK Parliament on the draft Bill. The Society raised concerns about changes to the authorisation of insolvency practitioners (particularly the concept of partial authorisation of IPs). The Society questioned whether anyone could be an effective corporate insolvency practitioner in Scotland if they possessed little or no knowledge of bankruptcy legislation.

The Society also questioned proposals to remove the requirement on listed and non-listed companies to notify the Registrar of Companies within 14 days when auditors resign. The Society noted that instability in auditors' holding office can be a significant negative factor influencing investors and that the Registry at Companies House is an early port of call for due diligence on all types of companies for making or withdrawing from investments.

Full details on the Bill and the Society's comments can be found here.

Regulation of Common Investment Funds

The implementation of the Alternative Investment Fund Managers Directive (AIFMD). means that the Financial Conduct Authority (FCA) will be responsible for ensuring that managers of unregulated investment funds, including Common Investment Funds (CIFs) and Common Deposit Funds (CDFs), will have to comply with certain requirements. This will require changes to the Charity Commission's model schemes for these funds. The Charity Law Sub-Committee responded to the Charity Commission's proposed changes, as participation in CIFs was opened up to Scottish charities by the Charities Act 2006. In its response, the committee recommends that as well as establishing new collective funds for charities as authorised investment funds regulated by the FCA, existing CIFs should also be converted. In so far as UK charitable tax reliefs remain a factor, the policing of eligibility for participation should be a matter for HMRC.

More details on the consultation paper and the committee's response can be found here.

2014 JHA Opt-Out Decision

The Society submitted a joint response with the Law Society of England and Wales to the House of Lords' EU Select Committee's follow-up inquiry into the UK's 2014 opt-out decision. In the response, the societies confirm their position that exercising the opt-out is likely to cause significant difficulties for cross-border criminal investigations and to increase the complexity of advising suspects and victims. It may also give rise to significant unnecessary costs (at a time when many reductions, not least in the field of legal aid, are being made to domestic criminal justice funding) and diminish the ability of the UK to influence future developments in this field of law at EU-level.

The joint response can be found here.


September 2013

Bankruptcy and Debt Advice (Scotland) Bill

The Society provided written evidence to the Scottish Parliament's Economy, Energy and Tourism Committee, noting our concern about proposals to remove many parts of the sequestration process from the Scottish courts. The Society also commented on the significant potential for conflicts of interest due to the proposed extended role of the Accountant in Bankruptcy. The Society will continue to closely monitor the progress of this Bill.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Marriage and Civil Partnership (Scotland) Bill

The Family law and Equality Law Sub-Committees provided written evidence to the Scottish Parliament's Equal Opportunities Committee, commenting that the Bill will expand the ways in which a couple can choose to define their relationship, whether through same-sex marriage, cohabitation or civil partnership. The Society suggested that in order to help people understand the differences between them and/or choose between them, further definition or explanation of the status of each would be useful.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Tribunals (Scotland) Bill

The Society submitted written evidence to the Scottish Parliament's Justice Committee, commenting that the Bill should help to modernise the civil justice system of Scotland. However, the Society voiced concerns that the Bill doesn't directly address the relationship between courts and tribunals, or the status of the Scottish Tribunals Service. The Society considers that these are areas which require further consideration.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Proposed Smoking (Children in Vehicles) (Scotland) Bill

The Society's Heath and Medical Law and Criminal Law Committees responded to Jim Hume MSP's consultation on proposals to prohibit smoking in private vehicles while a child under 16 years of age is present. The committee stated that whilst it was supportive of the general aims and objectives of the Bill, it had concerns about the implementation and enforcement of the proposals.

The full response can be found on our website.

Tackling illegal immigration in privately rented accommodation

The Immigration Law Sub-Committee responded to UK Government proposals to tackle illegal immigration in privately rented accommodation. The committee said it was concerned that in a competitive market for tenancies, the creation of any time lag before a contract can be completed may result in the landlord or agent choosing a tenant who does not need verification. The committee commented that this could have the unintended consequence of tenants being refused tenancies even when their immigration status is perfectly regular.

The full response can be found on our website.


August 2013

Children and Young People (Scotland) Bill

The Society provided written evidence to the Scottish Parliament's Education and Culture Committee, commenting that whilst it considers the policy aims laudable, it does not think this legislation is the best way to achieve them. The Society said that in order to be effective, the Bill needs to be clear, proportionate and enforceable. It also stated that the legislation must be future-proofed as far as possible, stating that this can be difficult when trying to reflect a multi-faceted policy agenda. The Society will continue to closely monitor the progress of this Bill in the coming months.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Regulatory Reform (Scotland) Bill

The Society's Planning Law Committee was asked by the Scottish Parliament's Economy, Energy and Tourism committee to provide additional written evidence on section 4 of the Bill (regulators' duty in respect of sustainable economic growth.) In its response, the Society questioned the requirement for an additional duty in respect of 'sustainable economic growth' and said that it considered that the proposed new duty would introduce some confusion about what should and should not be considered in any decision making process.

Full details on the Bill and the Society's comments can be found on the Bill pages.

EU Balance of Competences Review: Civil Judicial Cooperation

The Society hosted a Ministry of Justice stakeholder consultation event as part of the EU Balance of Competences review, focussing on civil and family judicial cooperation and the assessment of international civil and family law instruments. In its response to the Ministry of Justice call for evidence on this matter, the Society said that it supports the principles of civil judicial cooperation within the EU and beyond. It commented that civil courts need to cooperate with one another, particularly against the backdrop of increasingly international, cross-jurisdictional nature of individuals' lives and the commercial operations of businesses in the EU.

The full response can be found on our website.

Draft Courts Reform (Scotland) Bill

The Society responded to the Scottish Government consultation on the business and regulatory impact assessment of the draft Courts Reform (Scotland) Bill, commenting that the proposals are likely to impact upon any business that chooses to litigate and any business which is sued in the Scottish courts.

The full response can be found on our website.

Scottish Planning Policy

The Planning Law Committee responded to the Scottish Government consultation on draft Scottish Planning Policy. The committee was broadly supportive of the form, content, and tone of the document, stating that it considered it easy to follow and expected it to be easy to use for local authority users, developers, and those advising them.

The full response can be found on our website.


July 2013

Criminal Justice (Scotland) Bill

The Criminal Justice (Scotland) Bill was introduced to the Scottish Parliament on 21 June 2013. The Society reiterated its concerns regarding the proposal to remove the requirement for corroboration, as there are fears this could increase the risk of miscarriages of justice. The Society will continue to closely monitor the progress of this Bill in the coming months.

Victims and Witnesses (Scotland) Bill

The Society provided a briefing to MSPs ahead of the stage 1 debate, recommending that the Bill includes a clear and unambiguous definition of 'victim' so that individuals are clear what rights they have under the Bill. The Society also welcomed the creation of a Restitution Fund, which will contribute to the costs of running support services for police officers who have been assaulted during the course of their duties. However, the Society questioned why this fund could not be extended to cover other emergency service employees assaulted at work.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Inquiry into post-legislative scrutiny

Michael Clancy, Director of Law Reform at the Society, provided oral evidence to the Scottish Parliament's Standards, Procedures and Public Appointments Committee on 20 June as part of its inquiry in to post-legislative scrutiny. Among a number of recommendations, he suggested that the stage 3 parliamentary process could be amended to allow a greater period of time for legislative scrutiny.

Intellectual Property Bill

The Society submitted an amendment to Peers, which was subsequently debated, which would ensure that Scotland, England and Wales, and Northern Ireland are each granted local divisional court jurisdiction under the new unitary patent court system.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Marriage (Same Sex Couples) Bill

The Society submitted an amendment to Peers, which was subsequently debated, providing that the Court of Session, rather than the Secretary of State, would have the power to determine whether an English same sex couple marriage is a civil partnership under Scots law.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Consultation response on cross-border healthcare

The Health and Medical Law Committee responded to the Scottish Government consultation on the implementation of the EU directive on the application of patients' rights in cross-border healthcare. The committee raised a number of issues, particularly on rules concerning follow up treatment if the patient has received treatment elsewhere in Europe without authorisation from the NHS.

The full response can be found on our website.


June 2013

Scottish Independence Referendum Bill

The Society provided oral evidence to the Scottish Parliament's Referendum Bill committee. Michael Clancy, Director of Law Reform at the Society, said that the legislation was "well drafted" and "tailored to Scottish conditions". He also provided clarification on the "purdah" period leading up to referendum, stating that the Scottish Government had a statutory obligation to abide by the 28-day rule. Mr Clancy said that while the UK Government was not subject to the same statutory obligation, any infringement would have "political" consequences.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Land and Buildings Transaction Tax (Scotland) Bill

The Society provided written and oral evidence to the Scottish Parliament's Finance Committee on the Land and Buildings Transaction Tax (Scotland) Bill - in particular, on the complex issues surrounding commercial and agricultural leases, partnerships and licences to occupy land and buildings. Isobel d'Inverno, Convener of the Society's Tax Law Committee said that it had been challenging to give these issues the proper consideration that they require within the timescales involved, and that a working party should be set up to further consider the application of LBTT to partnerships. Furthermore, Ms d'Inverno said that if the legislation was to work in Scotland, it should not incorporate any of English legal terminology from the stamp duty land tax legislation, as this would give rise to difficulties in interpretation.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Intellectual Property Bill

The Society submitted an amendment to Peers concerning the Intellectual Property Bill, recommending that the Court of Session retains its jurisdiction over patent cases under the new community unitary patent system. The Intellectual Property Bill, once enacted, will pave the way for establishing a unitary patent court system in the UK. The Society said that it considers it important that Scotland is allocated one of the (up to four) possible local divisions of the court. This would ensure that businesses operating in Scotland are not unduly disadvantaged by no longer having a local option to enforce or defend their rights.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Draft Courts Reform (Scotland) Bill

The Society responded to the Scottish Government consultation on the draft Courts Reform (Scotland) Bill. The Society agreed with increasing the threshold for cases to be raised in the Court of Session, however, that it considered £150,000 to be too high a threshold. The Society stated that it would prefer to see the limit set at no more than £50,000, as this would allow cases with a lower value, but which still raise complex issues of matter of fact or law, to continue to be heard by the Court of Session.

The full response can be found on our website.

Regulatory Reform (Scotland) Bill

The Society provided written evidence to the Scottish Parliament's Rural Affairs, Climate Change and Environment Committee on the general principles of the Bill. The Society welcomed the Scottish Government's drive towards the simplification of complex regulation. It also supported the adoption of measures aimed to reduce inconsistency and streamline environmental protection regimes.

Full details on the Bill and the Society's comments can be found on the Bill pages.


May 2013

Victims and Witnesses (Scotland) Bill

The Society provided written and oral evidence to the Scottish Parliament's Justice Committee on the Victims and Witness (Scotland) Bill. The Society stated it supports the objectives of the Bill, however, that it believed certain elements could be improved upon. In his oral evidence, Peter Lockhart, member of the Law Society of Scotland's Criminal Law Committee, said that the Society was uncertain whether a new victim surcharge would bring additional benefits to victims, as Scottish courts already have the power to make offenders pay towards the cost of supporting victims through compensation orders. Mr Lockhart also stated that the Society was unclear why the Bill limits the use of restitution orders to assaults against police officers and does not include other emergency service workers, such as ambulance and fire service workers, who are themselves often exposed to assaults while carrying out their duties.

Full details on the Bill and the Society's comments can be found on the Bill pages.

Revenue Scotland

The Society responded to the Scottish Government consultation on tax management. A new tax collection body, Revenue Scotland, will come in to operation from April 2015. It will be responsible for the collection of the new Scottish landfill tax and Scottish land and buildings transaction tax. The consultation sought views on the structure and powers for Revenue Scotland, specifically, ensuring tax compliance, tackling tax avoidance, resolving tax disputes, treatment of taxpayer information and accelerating tax changes. The Society provided a range of recommendations and members of the Tax Law Committee are due to meet with Scottish Government officials to discuss these in further detail.

The full response can be found on our website.

Women and Work Inquiry

The Society provided written and oral evidence to the Scottish Parliament's Equal Opportunities Committee as part of its Women and Work Inquiry. In her oral evidence, Joyce Cullen, Convener of the Society's Employment Law Committee said there has been an "incredible" rise in the number of women entering the profession in recent years, with women now making up 60 per cent of graduates coming into the law. However, Mrs Cullen also said that many of the best-paid jobs are male-dominated and even "the best" private practices only have about 30% of partnership positions occupied by women. Mrs Cullen stated that there is a greater share of women working their way up through the legal ranks, with women now accounting for 48% of solicitors in Scotland.

The full response can be found on our website.


April 2013

Scottish independence referendum

The Society's Constitutional Law Committee provided written evidence on the Scottish Independence Referendum (Franchise) Bill. The Bill will make provision for those who are entitled to vote in the Scottish independence referendum, including the establishment of a register of young voters. The Society's evidence focussed in large part on section 3 of the Bill, namely prisoners not being entitled to vote in the referendum. The Society stated that it had considered this provision in light of judgments by the European Court of Human Rights, which ruled that a blanket ban on prisoner voting is incompatible with the Convention. However, the Society highlighted that these cases referred to elections for a national legislature, not referendums. It therefore concluded that whilst a legal challenge to the provision was entirely possible, it considered such a challenge unlikely to be successful.

Full details on the Bill and the Society's comments can be found on the website.

The Partnerships (Prosecution) (Scotland) Bill

The Partnerships (Prosecution) (Scotland) Bill will change the law in relation to the prosecution in Scotland of partnerships, partners and others following dissolution or changes in membership. The issue came into focus following the death of 14 elderly residents in a fire at the Rosepark nursing home in Lanarkshire in 2004. The Crown Office made three separate attempts to prosecute those alleged to be responsible but the case failed because of the loophole which prevented the prosecution of a partnership once it had been dissolved. The Bill was debated by the House of Commons Public Bill Committee on 19 March 2013. The Society submitted two probing amendments, which addressed the Society's concerns with clause 4, which has the effect of imposing liability on a new partner for a fine imposed before that partner assumed to the partnership and of which they have no knowledge. The amendments were withdrawn after deliberation by the committee. The Society will continue to work closely with the UK Government and Scottish Law Commission on this important piece of legislation.

The full response can be found on our website.

Reforming Scots Criminal Law and Practice: additional safeguards following the removal of the requirement for corroboration

The Society's criminal law committee submitted its response to Scottish Government consultation Reforming Scots Criminal Law and Practice: additional safeguards following the removal of the requirement for corroboration. The Society re-iterated its concerns that there is no wider review taking place concerning the abolition for the requirement of corroboration against the background of Article 6 ECHR. The Society also stated that no evidence had been produced to demonstrate that the abolition of corroboration will not result in miscarriages of justice. The Society also raised concerns with regard to the limited scope of the consultation; in particular, whether policing and prosecutorial decision making will simply shift from a quantitative to a qualitative test. The Society stated that research is required in order to determine how the prosecutorial test and the police reporting standard will operate in practice, following the removal of the requirement for corroboration.

The full response can be found on our website.

Reforming Scots Criminal Law and Practice: Reform of Sheriff and Jury Procedure

In its response to the Scottish Government consultation, the Society's criminal law committee identified a number of practical issues regarding proposals to implement new Sheriff court solemn procedures. These included concerns with proposals that at petition stage sheriffs should make a statement to the accused reminding them of the need to engage with the solicitor throughout the case, making full engagement with their solicitor from the petition stage onwards the starting point for considering a discount of sentence. The committee believes that this should be a matter between solicitor and accused and that if a sheriff is required to make such a statement, then an unintended consequence may be that there is undue pressure placed on accused persons to plead guilty.

The full response can be found on our website.

Disabled persons' parking

In its response to Dennis Robertson MSP's proposed private members bill aimed at strengthening the blue badge scheme enforcement powers (the Disabled Persons' Parking Badges (Scotland) Bill), the Society's Equalities Law Committee suggested that blue badge holders should have an opportunity to respond to allegations of misuse, prior to confiscation. The Society raised its concern that there may be situations where the blue badge is misused by a third party, such as a relative or a carer, without the knowledge of the badge holder. In such circumstances, the Society would consider it unjust to confiscate the blue badge without a fair and proper investigation, allowing the badge holder the opportunity to respond to any allegation of inappropriate misuse.

Marriage and Civil Partnership (Scotland) Bill

In its response to the Scottish Government consultation on the Marriage and Civil Partnership (Scotland) Bill, the Society's Family Law Committee expressed the view that the lack of clarity about the meaning of "marriage" may lead to public confusion. The Bill envisages a different form of marriage than has historically been the case and recognises that as it is a matter of public status recognised in law, it will be important for the public to understand the differences between the various types of social unit, including cohabitation, civil partnership and marriage; the rationale for recognising so many and the implications of each of them. The committee also sent comments to the Marriage (Same Sex Couples) Public Bill committee at Westminster, expressing some concerns about the procedure for having same-sex marriages performed in England and Wales treated as a civil partnership in Scotland (until such times as equivalent legislation is introduced).


March 2013

Partnerships (Prosecution) (Scotland) Bill

Following its written evidence submitted in January, and oral evidence before the House of Lords Special Public Bill Committee at Westminster in February, the Society submitted an amendment to section 4 of the Bill which was tabled by Viscount Hanworth. The amendment, which was a submitted as a probing amendment, addressed the Society's concerns with section 4. As it currently stands, section 4 would have the effect of imposing liability on a new partner for a fine imposed for an offence before that new partner was assumed to the partnership and for one which they may have no knowledge of. The tabled amendment removed that liability from the newly assumed partner and protected them from any indirect liability which may arise as a consequence of, or attributable to, a fine imposed on the partnership. The amendment was withdrawn by Viscount Hanworth after deliberations by the committee.

Full details on the Bill and the Society's comments can be found on the Bill pages.

High Hedges (Scotland) Bill

The Society's Property Law Committee submitted a number of amendments on the Bill at stage 2. They included a change to section 5 to allow the local authority to dismiss an application for a high hedge notice if it is totally without merit in addition to the other grounds in the Bill, that the application is frivolous or vexatious, as well as a change to section 31, which will place a duty on Scottish minsters and local authorities to consult on any guidance which they want to issue on any aspect of the Bill. The committee also submitted an amendment to section 15, which would ensure the person appointed to hear appeals under the Bill is educated in law, and is experienced in dealing with boundary disputes and hearing appeals.

The full documentation on the Bill can be found on the Bill pages.

Scottish Parliament Public Petitions Committee

The Society recently made submissions on two petitions lodged with the Scottish Parliament.

PE01458 - Register of interests for members of Scotland's judiciary

The petition calls on the Scottish Parliament to 'urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or amend present legislation to require all members of the judiciary in Scotland to submit their interests & hospitality received to a publicly available register of interests'. In its submission, the Society comments that those serving on the bench should attain the highest possible standards of judicial conduct and ethics, and states that more evidence should be produced to demonstrate a) the judicial oath, b) the statements of principles of judicial ethics for the Scottish judiciary and c) the terms of the Judiciary and Courts (Scotland) Act 2008 which applies in relation to complaints about judicial office holders, are not effective.

Accordingly, without further evidence that the systems in place are not effective, the Society disagrees that a register of pecuniary interests is required..

PE01455 - Public access to court records

The petition calls for the Scottish Government 'to consider the need for new legislation to create a free of charge public right of access to information generated in relation to court proceedings, including all documents which have been read in open court, whether aloud or not, and to proactively publish this information online.' In its submission, the Society agreed that the public right to scrutinise the justice process was an important principle in democratic societies, however also noted that certain court documents were the ownership of the parties rather than the courts themselves and as such could raise both data protection issues and financial implications for the Scottish Court Service in the provision of a public right of access to any document produced before a court.

Both submissions can be found on the Criminal law pages.

BIS consultation: Street trading and pedlary laws

In its response to the above consultation, the Society stated that there are a number of implications for applicants, police and local authorities should the Pedlars Acts be repealed and pedlary brought within the scope of civic government licensing. In particular, pedlars would have to apply for a separate licence in each and every local government area in which they wish to trade. As well as the increased cost to the applicant and administrative burden on local authorities, a pedlar may find himself or herself licensed to trade in one area, but not in another, depending on whether that council has granted a licence or even if that council has resolved to license pedlars and a licence is needed at all.

The Society has therefore suggested in its response that the Scottish Government should consider a scheme similar to the licensing of itinerant metal dealers in terms of s32 of the Civic Government (Scotland ) Act 1982 where a licence granted has effect to permit the licence holder to carry on business as an itinerant metal dealer anywhere in Scotland.

The full response can be found on our website.


February 2013

Scottish Civil Justice and Criminal Legal Assistance Bill

The Society issued its stage 3 briefing to all MSPs ahead of the stage 3 debate in the Scottish Parliament on 29 January. In the briefing, the Society restated that it was supportive of the principle of contributions, however retained its stance that the Scottish Legal Aid Board is best placed to collect those contributions and that that burden should not fall on individual solicitors. The Society did agree to a number of amendments aimed at improving the Bill, including the increase in the disposable income threshold at which a contribution would become payable from £68 to £82 per week, a guarantee that such a change would not be paid for through cuts to solicitor fees, the removal of disability living allowance and war pensions and the removal of police station interviews and cases involving remand or custodial sentences from the contributions system.

The full stage 3 briefing and all related documentation pertaining to the Bill can be found on the Bill pages.

Land and Buildings Transaction Tax (Scotland) Bill

Isobel d'Inverno, Convener, and Iain Doran, member of the Society's Tax Law Committee gave evidence to the Scottish Parliament's Finance Committee on 23 January. They reiterated the Society's support for the introduction of the new land tax, which will replace the current UK-wide stamp duty land tax from April 2015. The new tax will introduce a progressive rate of payment, rather than the current 'slab' structure, which is often seen as unfair by many due to the current steep rise in tax for properties just above the thresholds. The new tax will also be based on Scottish property law and conveyancing practice and a simpler administration regime will make it much more workable and easier to administer for solicitors and their clients.

Full documentation on the Bill can be found here.

A landfill tax for Scotland

The Tax Law and Environment Law committees responded to the Scottish Government's landfill tax consultation. In general terms, the committees see the proposed introduction of a landfill tax, in the context of increased fiscal autonomy for Scotland, as an excellent opportunity to introduce sensible, straightforward tax legislation that is clear in both its intent and application for the benefit of those who will be directly affected by it and their advisers . The committees also highlighted the need to ensure that rates are competitive and would not discourage businesses from operating within Scotland.

View the full response

Inquiry into post-legislative scrutiny

The Scottish Parliament's Standards, Procedures and Public Appointments Committee is carrying out an inquiry to consider possible approaches to carrying out post-legislative scrutiny in the Scottish Parliament; and to consider what changes are required to standing orders and the parliament's procedures. The Society's Law Reform Committee highlighted the need for post-legislative scrutiny in three particular cases: namely, when a court interprets legislation which shows a deficiency in the original act or order; when what the Hansard Society has described as "informal and haphazard" scrutiny takes place, for example when the provisions of an act have led to public concern; and thirdly, when a parliamentary committee or other oversight or stakeholder body has identified a problem with legislation which requires investigation and inquiry. The committee highlighted an example of this being when in its manifesto for 2011 the Law Society called for "an evaluation to be made of the Scottish Statutes and subordinate legislation passed since 1999 and the effectiveness of that legislation". The Society is therefore supportive of the inquiry and hopes it will result in a systematic on-going structure for cohesive post-legislative scrutiny.

Consultation on proposals for future funding arrangements for the Scottish Environment Protection Agency

The Society's Environment Law Committee responded to SEPA's consultation for its future funding arrangements. The committee generally welcomes the provision of a single broad statutory purpose for SEPA, and supports the integration of a considerable number of current charging schemes into one framework and a move to charging that is based on risk and operator performance, as well as the environmental resources principle.

View the full repsonse here


January 2013

UK's 2014 Opt-out Decision (Protocol 36)

The House of Lords EU Committee launched an inquiry into the United Kingdom's 2014 opt-out decision and its potential implications for the United Kingdom. The Society, along with the Law Societies of England and Wales and Northern Ireland have previously called for a full and open consultation on whether the UK should opt out of over 130 EU criminal justice measures, including the European arrest warrant. In its written evidence to the committee, the Society re-iterated it position that a wholesale opt-out could have very serious consequences in fighting cross-border crime from both a practical and cost perspective and that such a decision should not be taken before a thorough consideration of the implications. Even if the UK is able to "opt back in" to some measures, this is likely to lead to confusion, complexity and cost.

The Society's full response can be found on the criminal law pages.

Water Resources (Scotland) Bill

The Environment Law Sub-Committee provided a stage 1 briefing to MSPs, and while it generally welcomes the policy objectives of the Bill, it does have concerns that it does not take into account the environmental impact of safeguarding Scotland's water resources. The committee believes that a proper balance between development and environmental impact is required. As an example, there may be circumstances where water as a resource should not be 'used', at all.

The Bill also makes provisions for bringing large scale water abstraction under ministerial control.

The full briefing can be found here.

Pensions Regulator consultation - maintaining contributions

The Pensions Law Sub-Committee responded to the above consultation in December. The consultation relates to the Pensions Regulator codes of practice for maintaining contributions, whose aim is to improve transparency and ensure that everyone involved in the flow of contributions has a clear understanding of their accountabilities. The sub-committee commented that the requirement set out in the revised codes of practice and accompanying guidance that trustees and providers reconcile contributions payments received with what is due to be paid under a scheme's payment schedule may present a significant burden. The documents suggest that trustees and providers will require to complete some very detailed checks, eg analysing the constituent elements of members' salary to ensure that sums received are the appropriate percentage of members' pensionable salaries or earnings, and the sub-committee suggests that trustees and providers should be entitled to assume for these purposes that members' pensionable salaries or earnings have been correctly determined by the employer.

The full response can be found on the pensions page.

Recommendations for No-Fault Compensation in Scotland for Injuries Resulting from Clinical Treatment

The Civil Justice Committee responded to the above Scottish Government consultation, which looked at the potential benefits for patients in Scotland of a no-fault compensation scheme. The Society also considered the response prepared by the Association of Personal Injury Lawyers (APIL) and the response prepared by the Forum of Insurance Lawyers (FOIL). The Society does not believe that a no-fault scheme is the correct choice at this time and that victims of clinical negligence should not be treated any differently from those injured by other types of negligence.

The full response can be found here.

Partnerships (Prosecution) (Scotland) Bill

The Bill received its second reading in the House of Lords on December 4. The Society had raised concerns that a new partner joining after the alleged offence would be jointly and severally liable to the payment of any fine imposed upon the partnership following a finding of guilt. The Peers will begin taking oral evidence in January, and the Society is hopeful of being invited to attend.

Full details on the Bill and the Society's comments can be found here.

Land and Buildings Transaction Tax (Scotland) Bill

Members of the Society's Tax Law Sub-Committee have been invited to give oral evidence to the Finance Committee of the Scottish Parliament on January 23 on the above Bill. Full details of the session will be reported in next month's Journal.

 

Further information on the current work of the law reform department can be found at /forthepublic/law-reform-consultations and the team can be contacted on any of the matters above at lawreform@lawscot.org.uk or follow us on twitter @lawscot.