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. 

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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. 

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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. 

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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.  

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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