Committee Archive 2015

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.

The law reform team can be contacted on any of the matters below at lawreform@lawscot.org.uk or follow us on twitter @lawscot.

December 2015

Abusive Behaviour and Sexual Harm (Scotland) Bill

Our criminal law committee submitted written evidence on the bill in November. 

In its evidence, the committee highlighted that while supporting the policy objectives of the bill and that it would welcome any measure which helps to improve how the justice system responds to abusive behaviour including domestic abuse and sexual harm, that it had reservations as to whether the bill as drafted would help improve the justice system to do so.

The committee also highlighted its concerns around proving aggravation of an offence, as set out at section 1, and questioned why existing measures were not adequate and whether or not the increased use of statutory aggravations were improving the criminal justice system. 

On the ‘revenge pornography’ provisions, as set out at section 2, the committee is of the view that there is a strong argument for modelling the offence on the English legislation, rather than operating different regimes north and south of the border. 

Grazia Robertson also gave oral evidence to the Justice Committee on 17 November.

The full response and link to the oral evidence session is on our website

Footway Parking and Double Parking (Scotland) Bill

The criminal law committee submitted a call for evidence to the above bill.   The bill creates the offences of parking on footways (Section 2) parking at dropped footways etc. (Section 3) and double parking (Section 4) without the need to establish that there is in fact an obstruction.  While noting that other organisations may be better placed to respond to the bill, and the exceptions to parking on footways, dropped kerbs and double parking, there were a few issues that the committee raised, such as the consideration of a statutory defence the basis that the parking was, in all the circumstances, reasonable.  The committee also suggested a further exception to be considered, where it is necessary to park on the footpath to avoid obstruction to other vehicles in circumstances where there is a very narrow lane, part of which has a footpath.  The committee also highlighted the potential resource issues for the police and local authorities in the enforcement of the provisions of the bill. 

The full response can be found on our website

Apologies (S) Bill amendments

Following the submission of our stage 1 report in October, this month we proposed two amendments to be tabled at stage 2 of the bill.  The amendments supported our main concerns that we highlighted in previous briefings, specifically to  exempt the use of an apology in any medical negligence related proceedings, and to exempt an apology given in accordance with the duty of candour as set out within the Health, (Tobacco, Nicotine etc, and care) (Scotland) Bill.

The amendments can be seen in full on the website

Unjustified threats on intellectual property rights

The Intellectual Property committee responded to the IPO’s consultation.  The committee welcomes and is supportive of the proposed Bill, and agrees that legislation in this area has become outmoded and requires to be changed and modernised to reflect current needs and issues.  The Committee has not identified any specific areas which would render the proposals “contentious” from a Scottish perspective, and agrees that the bill is suitable for the Parliamentary procedure designed for uncontroversial Law Commission bills. 

The full response is available on our website

Committee Updates November 2015

English Votes for English Laws – Proposed changes to Standing Orders

The constitutional law committee submitted a further briefing to MPs on proposed changes to Standing Orders of the House of Commons, with the aim of providing a ‘definitive answer to the West Lothian Question’. Confining its comments to constitutional and legal implications to the proposed changes, the briefing questioned whether or not it was appropriate for a constitutional change of this nature to be made by amendments to the Standing Orders of the House of Commons.  From a legal standpoint, the brief goes on to highlight the issues that may arise from the role of the Speaker who has to certify that the legislation in question relates exclusively to England or England and Wales and is within devolved competence. 

Read the full briefing

Enquiry into EU Reform and the EU Referendum

We submitted our written evidence to the EU and External Relations Committee of the Scottish Parliament, on the possible withdrawal of the UK from the EU post a potential  referendum in 2017.   Without advocating a view on whether or not the UK should remain part of the EU, the briefing lays out some of the serious issues which may arise should the UK withdraw.  European law affects most people and businesses in Scotland and has primacy over UK law.  Under the Scotland Act 1998, all laws passed by the Scottish Parliament must be compatible with EU law.   The briefing also lays out the process that would need to be undertaken should the UK withdraw, including reference to Article 50 of the Treaty of the European Union and the negotiation of a withdrawal agreement.  It also goes on to highlight the international change process and the involvement of at least four European treaties, including the TEU, TFEU, EFTA, and the EEA. 

Read more

Transplantation (Authorisation of Removal of Organs etc.) (Scotland) Bill

The Health and Medical Law committee submitted its written evidence to the Scottish Parliament’s Health and Sport Committee on the above bill.  Whilst not commenting on the policy intention to create a soft opt-out system for organ donation, where a deceased person is deemed to consent to organ donation unless they have expressly opted out, the committee highlighted the need for clear and transparent proposals and the need for information to be available to those considering organ donation which would promote reflection and discussion with their family.  The committee also highlighted their support for a person to appoint a proxy to make a decision on organ removal on their behalf after their death - however they thought it would be wise to revisit the idea that a proxy does not need to know they have been appointed as such, so as to allow for the most informed decision as possible and to avoid the proxy having to perhaps ‘second guess’ the wishes of the deceased.  The committee also highlights its belief that the age limit for presumed organ donation should be set at 18 – highlighting capacity of young persons and alignment with the Welsh legislation, particularly where a person dies in Scotland but is ordinarily resident in another jurisdiction operating an opt-out system. 

Read more

Apologies (Scotland) Bill – Stage 1 Brief

We submitted a stage 1 brief to MSPs on the Apologies (Scotland) Bill.  We are supportive of the policy intent of the Bill, which is to promote the use of apologies and remove the perceived fear and risk that an apology will be used to ground a civil action, or as evidence to demonstrate liability.   The bill does not place a statutory obligation on any person or organisation to provide an apology.   In our briefing, we highlighted to MSPs that the definition of ‘apology’ as set out in this bill, differs greatly from the definition of an apology as set out under the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill, which is currently at stage 1 before the Health and Sport Committee. 

The Health Bill seeks to impose a duty of candour, and any apology given under a duty of candour will also be an apology under the Apologies (Scotland) Bill. 

As the definitions significantly differ, the law of unintended consequences may apply; the joint interpretation of both definitions may lead to an unforeseen or unanticipated consequence. If such were to occur, then the policy intent behind one, or both of these bills would fail and therefore we believe that the definition should be amended to reflect something similar to that as set out in section 23 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill or alternatively apologies given in accordance with the duty of candour are expressly excluded from the provision of the Apologies (Scotland) Bill. 

Read more

Trade Union Bill

The employment law committee submitted written evidence on the Trade Union Bill to the UK Parliament’s Public Bill Committee.  Noting that the Scottish Government has requested that Scotland be excluded from the bill, the committee suggested that

the Minister be required to consult with the devolved administrations on any proposed regulations, to ensure that full consideration is given to the impact and effect that the Bill’s provisions will have in those separate jurisdictions.   

The committee also set out its concerns on the bill’s compatibility with the European Convention on Human Rights and its compatibility with wider human rights obligations, including obligations under the European Social Charter, the International Labour Organisation Standards and the International Covenant on Economic, Cultural, and Social Rights.    The committee suggests that further consideration be given to whether the Bill’s provisions comply with these ratified treaties.  There are also provisions in the bill that have not previously been consulted on, such as the proposed prohibition of payroll deduction of trade union subscriptions.  

Read more

Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill

The health and medical law committee submitted a number of amendments to the above bill.  Included is an amendment to make the driver of the vehicle vicariously liable where an adult smokes in the car where a child is present.  It also proposed an amendment to provide a statutory defence to both the driver and the person smoking, where the driver took all reasonable steps to ensure the offence was not committed by any passenger, and if they or the passenger smoking reasonably believed all other passengers in the car to be adults.  In line with its written evidence, the committee has also proposed that e-cigarettes be included within the remit of this bill, until such time more information becomes available as to the long term risks, in particular to children and young people. 

Read the amendments here

Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill

Archie Maciver, convener of our licensing law committee gave evidence to the Health and Sport Committee on the above bill.  While supporting the general principles of the bill and any measures which are taken aimed at improving Scotland’s relationship with alcohol, Mr Maciver stated that one of the main provisions of the bill, a bottle marking scheme, could only prove where alcohol was bought, not necessarily how it got into the hands of an underage drinker. 

Read more on the bill and watch the evidence session

October 2015

Inquiries into Fatal Accidents and Sudden Deaths Etc. (Scotland) Bill

We provided a stage 1 briefing to MSPs on the Bill.  In the brief we stated our concerns that the Bill does not reflect Lord Cullen’s recommendation that relatives being represented  at a fatal accident inquiry should receive legal aid without showing the need for it to be reasonable.  Relatives appearing at a FAI are likely to find the experience of appearing at a FAI Daunting and traumatic, and we consider legal representation to be necessary.    expense of increasing availability of legal representation would be minimal in terms of the entire legal aid budget.  We also propose that some consideration be given to the creation of a statutory right to a FAI, and highlight our belief that this would only give rise to a small increase in the numbers of FAIs held throughout Scotland each year.  Such a hearing would provide closure to those dissatisfied families, should have a minimal economic impact, but would reinforce public confidence in Scotland’s system for investigation of apparently self-inflicted deaths.

The full brief is available on our website

UK Parliament’s Justice Committee’s Inquiry into Courts and Tribunals fees and charges

Our Administrative Justice committee submitted evidence to the Inquiry.  The committee restricted its response as to the effect of the introduction of employment tribunal fees in the Scottish court system.  We highlighted the reduction of 80% in employment tribunal claims since the introduction of the fees, and set out our views on the reasons for the drop, including but not limited to the high levels at which the fees have been set, placing the onus on the employee to pay the fees upfront and a complex, inflexible and inefficient system of fee remission. 

The introduction of these fees now means that employment tribunals are one of the most expensive routes to resolving disputes, and this can be seen by comparing sheriff court fees to employment tribunal fees in Scotland.

Our full briefing is available on our website

British Sign Language (S) Bill

Our equalities law committee submitted a briefing to all MSPs ahead of the stage 3 debate in the Scottish Parliament.  We are supportive of the policy intent of the Bill and noted that we were pleased to see that the Bill was amended at stage 2 to reflect that any engagement for consultation must include persons who use BSL and who are deaf or deafblind. We agree that it will only be through engagement with the BSL community that meaningful and effective plans can be developed and carried forward. We also welcome the requirement that all relevant documents are to be published in BSL.  We highlighted our support for Ministers to lay progress reports before the Scottish Parliament, which we would hope would ensure that the policy objectives of the Bill are met through close scrutiny and monitoring.  The Bill passed stage 3 on 17 September. 

The full briefing and a BSL Full details and videos are available on our website

Immigration and Asylum Committee

It has been a busy month for the Immigration and Asylum committee, who have responded to three consultations. 

Home Affairs Committee inquiry into skills shortages: the committee highlighted its thoughts on the annual cap on restricted certificates, and noted Scotland's economic needs differ from the rest of the UK and the need to increase the size of the working population. The annual cap does not recognise this and does not distinguish between Scotland and the rest of the UK.  It is the committee’s view that smaller businesses are likely to be disadvantaged by the annual cap as it requires them to pay higher salaries in order to secure skilled candidates.

Migration Advisory Committee call for evidence:  review of the Tier 2 route:the committee highlighted that the Tier 2 route is an important route for Scotland and the rest of the UK as it allows businesses to fill shortages with skilled candidates who can contribute to the growth of the business. In Scotland, reducing tier 2 migration will have a negative effect, by reducing the number of skilled workers available, in turn creating a particular impact on small businesses who may not be able to expand as a result of skill shortages.

Reforming support for failed asylum seekers and other illegal migrants: the committee were unclear as to how the proposals for limiting support  for failed asylum seekers would change the current arrangements in any meaningful way, and suggest that clarification be given to what is meant by “a genuine obstacle to departure”.  The committee also highlighted the UN Convention on the rights of the Child and that the proposals fail to take account of the UK’s obligations in this respect.  There is no indication of how the Secretary of State will have regard to the best interests of children affected by support decisions, despite potentially negative consequences for their wellbeing.   

The full responses to all three consultations are available on our website

September 2015

Committee Updates for September 2015

Land Reform (Scotland) Bill

The Society’s Property and Land Law and Rural Affairs committees submitted written evidence to the Scottish Parliament on the Land Reform Bill.  We are of the view that the Bill lacks sufficient detail or clarity in a number of areas to enable stakeholders to understand the changes and act or prepare accordingly.  Much of the proposed legislations serves only to provide a framework for important changes and leaves the detail of these changes to be made via regulations at a later date.   We also raise concerns that agricultural holdings legislation has been included - there are significant changes within Part 10 of the Bill that ideally would have been dealt with separately to land reform.  We are pleased to see however, that section 68 of the Bill amends s75 of the Local Government (Scotland) Act 1975 to provide the ability for a local authority to apply to the sheriff or the Court of Session for authority not only to dispose of, but now also to appropriate land forming part of the common good. 

We will be giving oral evidence on Part 10 of the Bill to the Scottish Parliament on 16 September. 

Our full written evidence is available on our website

Succession (Scotland) Bill

The Trusts and Succession committee submitted written evidence on what is likely to be the first of two bills. The first is quite technical in nature while the second, on which the Scottish Government is currently consulting, will address issues such as intestacy, protections for disinheritance and protections for cohabitants. While there may be more to say on the second measure, we made the general point that the opportunity to amend succession law does not arise very often, and we have a collective responsibility to ensure that it is done efficiently and effectively. The committee recommended that the government brings forward consolidating legislation to provide practitioners and members of the public alike with clarity on this important area of law.

We will be giving oral evidence to the Scottish Parliament on 15 September. 

The full written evidence can be found on our website

Community Justice (Scotland) Bill

The Criminal Law committee submitted written evidence on the Bill.  The committee envisages that the proposed community justice model will help to create a stronger community justice system, based on local planning and delivery with support at a national level.   The introduction of a new national body, Community Justice Scotland, should raise the profile of community justice and support the model outlined above, including making improvements in areas such as leadership and identification of best practice.  The committee questions whether or not the definition of community justice could be expanded to include the prevention of crime, rather than just focusing on the reintegration of offenders back into the community, with the aim of preventing people from being drawn into the criminal justice system in the first place.

The full written evidence available on our website

Health (Tobacco, Nicotine etc. and Care)(Scotland) Bill

The Health and medical law committee provided written evidence on Parts 1 and 2 of the Bill.  The committee is supportive of Part 1 of the Bill, which has the potential to address health and well-being and reduce the risk of harm caused by smoking and smoking related disease.  The committee, while recognising that e-cigarettes may be a safer alternative to conventional cigarettes, believe that more information is still required on the risks and benefits to public health in general, and particularly young people.  Part 2 of the Bill relates to a duty of candour.  It is the committee’s view that some of the proposals will be resource intensive and impractical to apply, and a balance needs to be struck between providing patients with an apology if something happens to them, without requiring doctors to report every ‘near miss’. 

We will be giving oral evidence to the Scottish Parliament on 22 September. 

The full written evidence is available on our website

Other News (September)

During September, the Society will also be giving oral evidence to the Scottish Parliament’s Devolution (Further Powers) Committee on the Scotland Bill, and the Scottish Affairs Committee at Westminster on English Votes for English Laws

Further information available from louisedocherty@lawscot.org.uk

August 2015

Committee Updates for August 2015

Scottish Government consultation: Proposals for a Lobbying Bill

We submitted our response to the Scottish Government’s consultation on proposals for a statutory register of lobbying activity in Scotland.  In the response, we reiterated the important and legitimate role of lobbying, and our support for full transparency of lobbying processes.  However, the consultation did not ask two important questions – ‘what is a lobbyist’ and ‘what is meant by lobbying activity’.  These are two fundamental questions which need to be answered to ensure that these terms are clearly and unambiguously defined in any future legislation, as they will be the basis upon which organisations will determine whether or not they will need to register.  We also raised concerns around proposals for individuals rather than organisations to register, which goes against recommendations made by the Scottish Parliament’s Inquiry into Lobbying, which would place a greater administrative burden on organisations with a number of staff who regularly meet with parliamentarians.  The proposals also seek to include only face to face meetings to be covered by the requirement to register.  Telephone conversations, emails and video conferencing would be excluded.  This seems at odds with the requirement for full transparency and openness and in our view opens the system up to criticism.  If the Government’s aim is to increase transparency and public confidence, then we have submitted that Ministerial diaries and minutes of meetings between Ministers and MSPs should also be included. 

Read our full response

English Votes for English Laws

Our constitutional law committee submitted two briefings on the UK Government’s EVEL proposals to change the Standing Orders of the House of Commons.  Due to the speed of the developing debate and the fast moving political environment, our briefings focussed on the fact that the changes to the Standing Orders of the House of Commons were of considerable importance. The debate has swiftly developed into a major constitutional issue. 

We detailed the legal questions arising from the proposed changes to the standing orders, and in particular on the role of the Speaker in deciding whether or not a particular bill would constitute an English or English and Welsh law for these purposes.  The decision to be taken by the Speaker would involve an assessment on whether or not the law in question constituted an English only or English and Welsh law, and whether or not it concerned matters that are devolved elsewhere in the UK.   Whether a bill applies only to England is not simply determined by looking at the extent provisions, it requires a significant constitutional and legal assessment of the measure, how it may operate in practice and what its legal effect might be.

Read our briefings

Smoking in Cars – supplementary Evidence

Following our oral evidence session at the Scottish Parliament on the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill, the Health and Sport Committee asked us to provide supplementary written evidence on a couple of points that were raised.  In this evidence we highlight our views on whether or not a person convicted under the proposed legislation may trigger a report to the child’s Named Person, under the Children and Young People (Scotland) Act 2014, and whether or not whether such a report is a proportionate response. We also explore the possibility of such an event triggering a referral to a children’s hearing.  We also reiterate our concerns regarding the enforceability of the proposed legislation and whether or not it should be the driver of the vehicle that is held responsible.

Our full commentary on the Bill and links to our oral evidence sessions can be found on or website

United Nations Convention on the Rights of the Child

In June, member of our Family Law Committee Professor Elaine Sutherland organised the third Annual International Colloquium on the United Nations Convention on the Rights of the Child Implementation Project, held in Edinburgh.  The colloquium provides an opportunity for experts from around the world to discuss and share information on the implementation of the UN Convention on the Rights of the Child. This year’s colloquium focused on Article 3 of the Convention, looking at the ‘best interests’ and welfare principles.  Papers were presented on a wide range of topics, with themes including adoption, paramouncy v primacy, the role of best interests in decision making, structural/institutional/social influences on implementation, and challenges surrounding the development of ‘non-traditional’ family types (including reproductive assistance, and multiple parents). The ideas were developed from different disciplines, such as law, child development, and anthropology, as well as from different jurisdictions, including the UK, USA, Canada, Australia, New Zealand, South Africa, Italy, and Nepal.

Committee Updates July 2015

Scotland Bill

Our constitutional law committee promoted 14 amendments to the Scotland Bill ahead of committee stage at Westminster, all of which were tabled for debate by opposition members. 

The amendments focussed on the issues surrounding the permanency of the Scottish Parliament, and our proposed new wording would remove any doubt concerning as to permanency.  We also promoted amendments concerning the Sewel Convention, suggesting wording which, in our view, would make the provision more robust in ensuring the Westminster parliament would not legislate on devolved matters with the consent of the Scottish Parliament. 

We have also called for the regulation of estate agents to be devolved to the Scottish Parliament, which would allow the Scottish Parliament to make law relating to estate agents which would be more closely aligned to the Scottish legal system and the needs of consumers in Scotland. 

All our briefings and amendments can be found on our website 

Prisoners (Control of Early Release) Bill

This Bill was passed by MSPs on 23 June.  This legislation will end automatic early release on licence after two thirds of a sentence has been served for all categories of long term prisoners, who will now be released on licence six months before the end of their sentence.  

During the passage of the Bill, we raised our concerns that the biggest change in custodial sentencing in 22 years was being introduced without a full period of consultation, such as the 14 month review undertaken by Lord Kincraig ahead of the introduction of the parole system, and that the Scottish Government substantially changed the terms of the Bill at stage 2, extending the provisions of the Bill to cover all long terms prisoners. 

As introduced the Bill’s provisions extended to certain categories of prisoners only.  It is our view that six months is an inadequate amount of time to successfully reintegrate an offender back into the community, and now the focus should be on ensuring sufficient resources are put in place to ensure that the risk of reoffending can be reduced, through both the increased provision of relevant offence-focused work in custody and a properly funded rehabilitation programme. This will also need to be followed by proper support for released prisoners during their reintegration into the community. 

All the Society’s briefings on the Bill can be found on our website

Mental Health (Scotland) Bill

The Mental Health (Scotland) Bill was unanimously passed by MSPs at Stage 3 on Wednesday 24 June. 

The Mental Health and Disability committee is of the view that the bill will bring some additional clarity to the Mental Health (Care and Treatment) (Scotland) Act 2003 (the “2003 Act”).  The committee was particularly pleased that the bill was amended after Stage 2 to remove the proposed extension of the period of short-term detention from five days to ten days; and that an amendment was accepted at Stage 3 extending the right of appeal against cross-border transfers to named persons and other relevant parties. 

However, a number of concerns were not addressed.  In particular the committee sought to give a right of appeal to curators ad litem and to introduce the use of recorded matters in compulsion orders and compulsion and restriction orders but these proposals were not accepted by the government.

Our briefings on the Bill are on our website

Compulsory Purchase Orders - SLC Discussion Paper

The Scottish Law Commission’s paper sets out the current law on compulsory purchase and its proposals as to how the law could be improved and reformed. 

In our response we stated that we would be supportive of a new statute, and that a properly drafted new Act could result in a more efficient and fairer system of compulsory purchase and compensation which benefits the economy and social justice.   

In our response we refer to the current definition of ‘land’ and that it is too restrictive and that it should include airspace rights.  We also agree powers for temporary possession would be useful, particularly where access is required during construction, and that the right to compensation as the result of a compulsory purchase order should be put on the face of the new statute. 

Our full response can be found on our website

Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill

Our licensing committee submitted written evidence on the Bill.  We support the policy intent of the Bill to promote public health and reduce alcohol related offending, but question whether the provisions contained in the Bill will achieve this policy intent. 

The committee makes reference to the terms under section 6, which makes it an offence to advertise alcohol in a prohibited place, such as a school.  We question how this could be enforced in practice, as an example a member of the public could display a poster for an event with an alcohol sponsor in the window of their home, and unknowingly be committing an offence.  The committee also question proposed ‘drinking banning orders’, how they would be enforced and how premises licence holders will know who has had a drinking banning order imposed. 

Our full response can be found on our website

Committee Updates June 2015

Assisted suicide

The Health and Medical Law sub-committee has submitted a briefing for MSPs in advance of the Stage 1 debate on the Assisted Suicide (Scotland) Bill reiterating its concerns that a lack of clarity on definitions contained in the bill and ambiguity of the proposed legislation may give rise to difficulties in enforceability.  The committee also reasserted the Society’s opposition to a blanket provision enabling solicitors to act as proxies to sign a request for assisted suicide where the person making the request is blind, unable to read or unable to sign themselves.  Being a solicitor does not, of itself, qualify an individual to assess a person’s mental capacity in the consideration of ending his or her own life.

Read our latest submission.

Smoking in cars

The Health and Medical Law sub-committee has also submitted Stage 1 written evidence on the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill.  The committee supports the policy intention behind the bill but has pointed out the practical difficulties of enforcing the legislation, which would make it an offence to smoke in a vehicle in which there is a child and which is in a public place. It also highlighted the lack of complementary proposals focusing on education and prevention of smoking, as it is generally acknowledged that a combined approach is more effective in changing patterns of smoking behaviour and promoting tobacco control.

Read our written evidence.

Fatal Accident Inquiries

The Civil Justice committee responded to the Scottish Parliament’s Justice Committee’s call for evidence on the Inquiries into Fatal Accidents and Sudden Deaths Etc (Scotland) Bill.  The committee welcomed the policy objective of the bill to reform and modernise the law governing the holding of Fatal Accident Inquires (FAIs) in Scotland but was disappointed that the bill did not take the opportunity to implement the recommendation made by Lord Cullen in his 2009 review of the existing legislation; namely, that relatives of the deceased should not have to justify the reasonableness of the granting of legal aid for their representation at the FAI.

Read the committee's response.

OSCR Charity Test Guidance

The Charity Law committee has responded to a Scottish Charities Regulator (OSCR) consultation on its new draft version of the charity test guidance, which is designed to help both prospective and existing charities and their advisers to understand the requirements of the charity test and how to pass it.  Overall the committee thought that the draft guidance was a clear improvement on the existing version and that the use of illustrative case studies was helpful, although it did raise some queries about the detail of some of the examples, as they did not think that they were clear in their intent.  The committee also met with senior representatives from OSCR earlier in the month to discuss the implications of the Smith Commission’s devolution recommendations on charities.

The the Charity Law committee's response.

Queen’s Speech 2015

The new UK government has set out its legislative agenda for the parliamentary session ahead.  Among the various measures are the Scotland Bill, based on the cross-party Smith Commission agreement on Scottish devolution; the EU Referendum Bill, which will put effect to the government’s pledge to re-evaluate the UK’s membership of the EU; and an Immigration Bill, which will include a series of measures to control immigration and do more to target illegal migration. The law reform team will provide a fuller analysis of these and other relevant legislative measures as set out in the Queen’s Speech, as our committees have the opportunity to consider them in detail.

Read the Society's initial reaction to the Queen's speech.

The law reform team can be contacted on any of the matters above through louisedocherty@lawscot.org.uk or follow us on Twitter @lawscot.

Committee Updates May 2015

Mental Health (Scotland) Bill

The mental health committee prepared amendments to submit to the Scottish Parliament’s Health and Sport committee. The committee is seeking to delete section 1 of the bill which proposes to extend the short term detention period from 5 to 10 working days.  It is the committee’s view that this extension would afford less protections to a patient under articles 5 and 6 ECHR.  Presently, a patient who is subject to a Compulsory Treatment Order can have measures authorising detention under those orders suspended.  The committee is looking to delete part of section 9 which gives mental health tribunals the authority to extend this period of suspension by a further 100 days in any 12 month period.  This was not consulted on and the committee does not believe there is any need to change the current law.  It is the committee’s view that the Bill would result in further tribunals for the patient and the overall volume of hearings for the Tribunal. 

All the amendments will be available shortly on our website. 

British Sign Language (Scotland) Bill

The Equalities committee prepared a stage 1 brief to submit to all MSPs.  The committee is supportive of the policy intention of the Bill which is to promote the use and understanding of BSL.  In order to meet that obligation, under the terms of the Bill, a Scottish Minister will be responsible for publishing a National Plan for Scotland and local authorities will be required to publish their own ‘Authority Plans’, which must be consistent with the National Plan. 

The Society’s Equalities committee has some concern that the both the national and local authority plans may be interpreted as equalities issues, which is not the intent of the Bill, and to that end would suggest for greater clarity on what is expected from both local and national plans that would be distinct from existing obligations under the General Equality Duty. 

The full briefing is available  on our website

Scottish Elections (Reduction in Voting Age) Bill

The Constitutional law committee submitted its comments to the Scottish Parliament on the Bill.  In its comments the committee highlighted that there could potentially be human rights implications, in particular with regard to prisoners who are 16 or 17 years old.   Section 1 of the Bill gives 16 and 17 year olds the power to vote by amending the Representation of the People Act 1983.  Section 3 of that same Act disenfranchises prisoners from voting.  Currently, the UK blanket ban on prisoner voting is deemed in contravention of ECHR, however the Scottish Parliament cannot pass any laws that are incompatible with ECHR.  This means that adherence to the disenfranchisement for offenders of 16 years old may result in challenges on the basis that the Bill in this respect applies an incapacity which is incompatible with convention rights.

The full response is available on our website

Air Weapons and Licensing (Scotland) Bill

We submitted a stage 1 brief to MSPs in April.  On the alcohol licensing provisions, the licensing law committee reiterated its concerns as to the lack of clarity around who can apply for a transfer of a premises licence and when that transfer can take effect, particularly in the common situation where a tenant disappears and leaves the business premises closed for some time.   The committee also raised serious concerns around a licence ceasing to have effect once surrendered by a tenant with the consequence landlords insisting that they now hold the premises licence in their name, without of course being able to exercise appropriate supervision on a day to day basis. This situation could be easily remedied to allow reinstatement of a licence following a surrender.  The committee is also concerned that nothing has been done to reinstate the old site-only provisional grant.  Applicants at present can incur significant cost in submitting detailed plans to licensing boards with no guarantee of a licence being granted.  In relation to air weapons, the committee re-raised the issue that the Bill licenses the applicant but makes no correlation to the air weapons, and there is no requirement to present the certificate when buying ammunition. 

The full briefing is on our website

The Commonwealth Association of Law Reform Agencies Conference 2015

On 11 and 12 April, the Scottish Law Commission hosted the CALRAS conference, bringing together law commissioners and associated organisations from across the Commonwealth.  The conference heard from Lord Carloway, who gave his perspective on lawyers as law reformers, how law reform agencies can maintain their independence from Government, how law reform agencies can engage with their stakeholders and on the implementation of law reform programmes.  Over 100 delegates attended, in what was the Scottish Law Commission’s 50th anniversary year. 

Committee Updates April 2015

Human Trafficking and Exploitation (Scotland) Bill

Following on from our written evidence, James Mulgrew from our Criminal Law Committee gave oral evidence to the Justice Committee at the Scottish Parliament on 24 March.  We are supportive of the policy intent if the bill, and in particular the desire to prevent and tackle human trafficking and exploitation and make Scotland a hostile place for traffickers.  In the oral evidence session we highlighted our support of a victim-centred approach and that we would favour the introduction of both a statutory defence, which would be available to a person who has committed an offence as a direct consequence of having been trafficked and the possibility of a plea in bar of trial. This would be in addition to the bill’s proposal for a requirement on the Lord Advocate to publish guidelines on prosecuting victims of human trafficking offences.

The full written evidence and a link to the oral evidence session is available on our website

Tax Law Committee Update

The Tax Committee has been particularly engaged over the past month in relation to the implementation of Land and Buildings Transaction Tax. The LBTT working group has attended a number of engagement meetings with Revenue Scotland in the past month to discuss various matters including the interpretation of sections within the Land and Buildings Transaction (Scotland) Act 2013 and the LBTT sign up process. The working group have been busy providing comments and recommendations to Revenue Scotland on the LBTT return guidance and LBTT guidance itself. Volunteers from the working group trainees/paralegals and solicitors from the professional attended a number of sessions at Victoria Quay in March to test the LBTT return system, which went live on 1 April.

The main Tax Committee has also been busy and met with HMRC representatives last month to discuss proposed tax evasion policy. Consultations have also been submitted on Draft Guidance to Extra Statutory Concessions, the proposed Revenue Scotland Charter, Tax Enquiry Closure Rules and Sanctions for Tax Avoidance. Representatives from the Tax Committee also met with UK Government officials within the Scotland Office to discuss the further tax devolution proposals.

All consultation responses can be found on our website

Interception of Communications – Draft Code of Practice

We responded to the above Home Office consultation on draft codes of practice for the interception of communications.  We welcome the introduction of a code of practice and enhanced safeguards.  In our response we note that confidentiality is central to the rule of law, and those seeking legal advice should be assured and have confidence in their legal adviser and that any communications between the two parties remain strictly confidential.  This protection of legal privilege underpins the provision of legal advice.  Currently the Secretary of State can issue a warrant for intercepting communications, without any judicial oversight – it is essential that there should be an application to a court for such a warrant to be issued.  In our response we also highlight that there could be considerable implications in terms of ECHR, as articles 6 and 8 will be engaged if lawyer/client communications are intercepted. 

The full response can be found on our website

Inquiry into the procedures for considering legislation in the Scottish Parliament

The Scottish Parliament’s Standards, Procedures and Public Appointments Committee undertook an inquiry into the legislative processes of the Scottish Parliament last year, and published its report this month.  We submitted written evidence to the inquiry and our director of law reform Michael Clancy gave oral evidence.  We were pleased to see in the report a number of mentions of our concerns and suggestions, and the acknowledgement that stage 3 of the legislative process is the one that could benefit most from improvement.  It was stated in the report: “The Law Society of Scotland summed up the views of many people in a written submission— “This is the area with the greatest potential for improvement””

The full report can be found on the Scottish Parliament website and our written evidence and a link to our oral evidence can be found on our website

Scotland’s Constitutional Future – the draft clauses

We submitted our response to the UK Government’s draft legislative clauses to implement the Smith Agreement.  We highlighted the issues with clause 1 regarding the permanency of the Scottish Parliament and the challenges that this presents from a legal perspective.  The concept of parliamentary sovereignty means that one parliament cannot bind a future parliament, and while the political will is clear, the current wording of the clause would still allow a future UK Parliament to repeal the original Act which established the Scottish Parliament.  Our director of law reform Michael Clancy gave oral evidence to the House of Commons’ Political and Constitutional Reform Committee on the draft clauses, who in their report made similar remarks, supporting our evidence. 

Our full response to the UK Government legislation and a link to the evidence session is on our website

Committee Updates March 2015

Human Trafficking (Scotland) Bill

Our criminal law committee submitted written evidence on the above bill.  The committee welcomed the policy intent of the bill and in particular the desire to prevent and tackle human trafficking and exploitation in Scotland.  The committee acknowledged the complex and multi-faceted nature of trafficking human beings for exploitation and welcomed the commitment by the Scottish Government to work in partnership with relevant agencies on an international and UK level in order to make Scotland a hostile place for traffickers and to better identify and support potential and confirmed victims.   On the basis that the Scottish Government favours a victim centred approach to human trafficking, the committee also stated the bill should also set out the obligations that public authorities have in providing support and assistance to victims of human trafficking.    The committee also reflected on the fact that the Scottish Government favours a victim-centred approach, and suggests more consideration is needed on the specific support that should be available for victims, beyond the duties on Scottish Ministers already included in the bill.  The Society has been invited to give oral evidence on 24 March. 

The full written evidence is available on our website

Mental Health (Scotland) Bill

The Society’s mental health and disability committee submitted a stage 1 briefing on the above bill.  In the briefing the committee reiterated its concerns highlighted in its written evidence on the proposed extension of short term detention pending determination from 5 days to 10 days.  The committee highlighted that although this proposal is based on recommendations of the McManus report, this extension is, in the committee’s’ view no longer necessary, and that the problem associated with the 5 day period would be alleviated by a 10 day period.  The committee also highlighted its concerns that the bill does not provide patients detained in a low security hospital the right to appeal against conditions of excessive security.  Confining the right of appeal to patients in medium secure facilities is, in the Society’s view, restrictive and discriminatory. 

The full briefing is available on our website

The Future of Land Reform in Scotland

The Society responded to the Scottish Government’s consultation which lays out proposals for a potential Land Reform Bill and the setting up of a Land Reform Commission.  The Society has called for any land law reform to be ‘coherent, clear and workable,’ and pre-existing legislation must be taken into account.  The Society states in its response that the setting up of a Land Reform Commission appears to be a sensible way to progress land reform, however that there appeared to be a lack of clarity within the consultation as to how any such commission would be structured or what its remit would be.  The Society also suggested that stakeholder engagement was key and that any commission must remain independent of executive influence and represent the interest of all stakeholders, such as agricultural tenants, crofters and charities.

The Society also highlighted concerns around the proposals to increase transparency and accountability of land ownership in Scotland by limiting those who can own or take a long lease over land to legal entities registered in an EU Member State.  In the Society’s view restrictions such as these could be easily by-passed by non-EU companies setting up shell companies in the EU, not necessarily fulfilling the Scottish Government’s policy objectives of achieving greater transparency regarding the real land owner.  This could have an affect not only commercial land, but residential and agricultural land as well, thus having a potentially serious impact on business, and reducing investment.

The full response is on our website

LBTT – Sub-sale Development Relief and Multiple Dwellings Relief) (Scotland) Order 2015

On 25 February, Isobel d’Inverno, convener of the Society’s Tax Law Sub-Committee, gave evidence to the Scottish Parliament’s Finance Committee on the Scottish Government’s proposals in relation to sub-sale development relief and multiple dwellings relief for Land and Buildings Transaction Tax.  Ms Isobel welcomed the Scottish Government’s policy shift so that the sub-sale development relief will now be claimed and given at the outset, subject to it being withdrawn or partially withdrawn in the event a “significant development” does not take place on the acquired site within 5 years. The original proposal, whereby the relief could only be claimed when the “significant development” had completed, would potentially have resulted in a commercial disadvantage for Scotland and led developers to build in England instead where the relief is more widely available.  Isobel also welcomed the wider definition of “significant development” now proposed by the Scottish Government but suggested that the 5 year period for the “significant development” to take place should be subject to an extension on cause shown for a further reasonable period determined by Revenue Scotland.

February 2015

Counter-Terrorism and Security Bill

Following the submission of a second reading letter to MPs in December, the Society sent a full briefing to all Scottish Peers ahead of the Bill’s second reading in the House of Lords on 13 January.  The Society re-iterated its concerns surrounding the Bill, particularly that it is susceptible to successful challenge under human rights legislation and that it is going through under the fast track procedure, without the opportunity for proper scrutiny and debate.   The Bill proposes to introduce a Temporary Exclusion Order, an order requiring an individual with the right of abode not to return to the UK.  This raises ECHR issues and the Society highlights that consideration must be given to how the provisions of the bill ensure an individual’s human rights are upheld.  The Bill also allows for the seizure and temporary retention of passports by the police, where an individual is suspected of intending to leave the UK, or has arrived in the UK with the intention of leaving soon after for the purposes of terrorist activity.  In its briefing the Society highlights that there are existing travel restriction powers which were introduced in 2011 (Terrorism Prevention and Investigation Measure orders), which are designed to protect the public from persons believed to be engaged in terrorism-related activity, and questions whether the provision to seize and retain a person’s passport is a justified interference with the individual’s rights of respect to a private and family life under Article 8 ECHR.

The full briefing can be found on our website

Political and Constitutional Reform Select Committee Second Report: a new Magna Carta?

The Political and Constitutional Reform Select Committee produced a paper entitled ‘A new Magna Carta?’ which examines the nature of UK constitution and options for change, and disused it for public consultation and comment.  In its response, the Society’s Constitutional Law Committee highlighted how constitutional reform has been at the forefront of parliamentary matters across the UK since 1997, with the creation of the Scottish Parliament, the enactment of the Human Rights Act 1998, the creation of the Supreme Court and a number of referendums particular highlights.  The paper suggests three options as a way forward - the Society states in its response that it would not be in favour of a non-statutory constitutional code and that it sees a written constitution as the preferable option as a more focussed constitutional basis for a modern state.  

The full response can be found on our website

British Sign Language (Scotland) Bill

The Society’s Equalities Committee has submitted written evidence on the above Bill.  The primary aim of the Bill is to promote the use and understanding of British Sign Language (BSL) and to make provision for the provision for the preparation and publication of a British Sign Language National Plan for Scotland.  The committee is supportive of the Bill’s primary aim, but does highlight the need for clarity as to the division of competence between the Bill and existing equalities legislation, particularly as the Bill is explicit in determining that BSL is to be promoted as a minority language rather than an equalities issue.     Scottish public bodies are required to comply with specific duties outlined in the Equality Act 2010, and the committee questions whether or not considerations should be given as to whether a more generic obligation to promote minority languages could be incorporated into a new specific duty. 

The full briefing can be found on our website

Revenue Scotland and Tax Powers Act 2014: A Consultation on the Scottish Tax Tribunal Rules

The Society’s Administrative Justice committee responded to the above named Scottish Government consultation. In relation to the First-tier Tax Tribunal for Scotland Rules 2015, the committee noted that it would appear to be the logical and sensible approach to adopt the existing rules of the UK First-tier and Upper Tax Tribunals, which have been developed by the Tribunal Procedure Committee under the Tribunals, Courts and Enforcement Act 2007, these having already been subject to UK-wide consultation.   The committee did highlight that the lack of an accompanying policy document explaining any detraction from the main rules, prevented consultees from fully considering and responding.    In relation to the the Upper Tax Tribunal for Scotland Rules 2015 , the Committee noted that the draft rules largely replicated the UK Upper Tax Tribunal Rules, and the reasons for any exceptional departures were apparent.  

The full response is available on the Society’s website

Consultation on Proposals to Introduce a Statutory Duty of Candour for Health and Social Care Services

The Society’s Health and Medical Law Committee submitted its response to the above Scottish Government consultation.  The committee welcomes the policy objectives and positive intentions of this proposal, and highlights transparency and information sharing and support as two main themes of the consultation.  A duty of candour already exists as an ethical obligation imposed by governing bodies of the various individual healthcare professionals, so the committee is unclear what these proposals will add to existing policy and guidance.  The Consultation also highlights existing problems towards a consistency in approach.  The committee stated that while it recognised the value of a consistent approach, given the breadth of provisions contained with the frame of health and social care, that this would be challenging for organisations to enforce. The committee also envisages that there may also be issues pertaining to interpretation and application especially where the regulations rely on subjective assessments. Compliance may therefore be resource intensive and difficult to monitor. 

The full response can be found on our website

January 2015

Prisoners (Control of Release) (Scotland) Bill

The bill ends the right of certain long-term prisoners to automatic early release from prison at the two-thirds point of their sentences and allows prisoners serving all but very short sentences to be released from prison on a particular day suitable for their re-integration into the community. 

The Society’s Criminal Law Committee states in its evidence that the most coherent reason for the existence of a system of mandatory release on licence prior to the expiry of the entire sentence is that it allows a degree of testing in the community while offenders are subject to conditions, breach of which can result in a return to custody.  The Committee questions why the proposals within the Bill should only apply to certain categories of long-term prisoner.

In the Committee’s view, there is no conclusive evidence that the nature of the offence committed, or the sentence imposed, is in itself a reliable indicator of future risk. Indeed, there is some evidence that those serving the longest sentences are proportionately less likely to reoffend in a serious manner than those convicted of lesser offences.  The Committee also highlights the reference that ‘sex offenders pose a particular risk to the public’ but states that this is far from clear that this is correct and goes on to highlight evidence from the Parole Board annual reports which appear to dispel that proposition.

The full written evidence can be found on our website

Counter-Terrorism and Security Bill

The bill was introduced into the Westminster Parliament at the end of November by Home Secretary Theresa May, and given its second reading on 2 December.  The Society submitted a second reading letter, highlighting its concerns around the use of the ‘fast track’ procedure and the apparent speed of the bill’s legislative passage, given the provisions of the bill have significant implications on the fundamental rights of citizens. 

The bill, which is comprised of seven parts, introduces a number of measures to restrict the movement of individuals suspected of involvement in terrorism related activities. It provides the power to seize the passport of a British citizen at any border control where there is reasonable grounds to believe the person is leaving the United Kingdom for the purpose of engaging in terrorism related activity.

It also provides the power to prevent a British citizen from re-entering the United Kingdom who is suspected of being involved in terrorism activity whilst abroad. In addition to the new provisions, the bill amends and extends a number of existing powers relating to the monitoring and controlling of persons suspected of being involved in terrorism related activity. 

The Society raises concerns around the introduction of a system of Temporary Exclusion Orders, an order requiring an individual with the right of abode not to return to the UK.  This raises ECHR issues and the Society highlights that consideration must be given to how the provisions of the bill ensure an individual’s human rights are upheld.  

A fuller brief will be provided ahead of Committee stage, the full letter can be found on our website.

Tax Committee

The Society’s Tax Committee was particularly active in December. The convener of the Committee, Isobel D’Inverno, provided oral evidence to the Scottish Parliament’s Finance Committee to assist its enquiry into the devolution of further fiscal powers. In particular, it was noted that Annual Tax on Enveloped Dwellings was a matter that was suitable for further devolution, despite not being included within the Smith Commission. However, the mechanics of the Smith proposal that Holyrood should receive a proportion of the VAT raised in Scotland, was a matter that required close consideration. The Committee also provided comments to the consultation on the proposed Revenue Scotland Charter of Values. Proportionality, transparency and good faith are key principles that the Committee suggests should be at the Charter’s core.

The working group established to help ensure that the implementation of Land and Buildings Transaction Tax (LBTT) is as smooth as possible, has also had a very active month. In addition to the monthly meetings the group has been holding with representatives from Revenue Scotland over the past 12 months, they have annotated and provided examples to draft LBTT legislative guidance which is set to be published before 1 April.

The guidance extends to nine chapters on the operation of LBTT and includes an overview of how the tax works, explains how to make an LBTT return and has detailed provisions with respect to leases. The group also attended a session at the Scottish Government’s offices to see a demonstration of how the LBTT online return system will operate. They were encouraged by the prototype they were shown, noting its intuitiveness and user friendly format.

All consultation responses and links to the oral evidence sessions can be found on our website

Consultation on e-cigarettes and strengthening tobacco control

The Society’s Health and Medical Law Committee responded to the Scottish Government’s consultation on the regulation of e-cigarettes.  The Society is fully supportive of the general policy aims of the consultation but did question whether there was public support for the proposal of regulation, questioning divergent views on both their safety and efficacy, as well as whether or not enforcement is effective and feasible.  The Committee did state that the minimum age for sale should be restricted to 18 years of age, in line with that of the current legislation for traditional tobacco products, and that any offences should apply to the retailer rather than the young person attempting to buy the product. 

The consultation also covers the issue of smoking in cars where there are children.  The Society is of the view that it should be an offence for an adult to smoke in a car where there is a person under the age of 18, and that the driver, regardless of age, bears the responsibility to ensure no person smokes in the vehicle, where a child is present.

The full response can be found on our website