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