Committee Updates 2016

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

December 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including the Proposed Football Act (Repeal) (Scotland) Bill, the impacts of Brexit on Justice and Security and the Future of Forestry in Scotland.

Key areas are highlighted below. For more information see the law reform section of the website.

Proposed Football Act (Repeal) (Scotland) Bill

The Criminal Law Committee has responded to a consultation issued by James Kelly MSP on the Proposed Football Act (Repeal) (Scotland) Bill which is a proposal for a Bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The question of whether or not the 2012 Act should be repealed is a matter for the Scottish Parliament. We believe that the intent to address the serious issues of offensive behaviour at football matches and threatening communications is entirely commendable; however, we remain concerned about a number of aspects of the Act, which we expressed when we provided written and oral evidence to the Justice Committee at Bill stage in 2011.

As stated in our 2011 response, a substantial proportion of the offensive behaviour related to football was likely to be caught by the substantive criminal law which existed prior to the 2012 Act coming into force, and continues to exist. We have also reiterated our previous concerns about the enforceability of the legislation and practicalities of prosecuting alleged incidents occurring out with Scotland.

You can read our full consultation response here

Legislative Process

The Constitutional Law Sub-Committee responded to the House of Lords Constitutional Committee inquiry into the legislative process in October. The committee is conducting a large-scale inquiry into the legislative process to follow its 2004 report on Parliament and the Legislative Process.

As part of the inquiry, an oral evidence session was held on Wednesday 23 November 2016 and Michael Clancy, Director of Law Reform, was on the panel alongside representatives from the Law Society of England and Wales and the Bar Council.

You can view the full evidence session and consultation response here

Brexit

We have continued to respond to various consultations and engage with both the Scottish and UK Parliaments on the future relationship between the UK and the European Union.

In particular, the Criminal Law Committee has responded to the House of Lords EU Home Affairs Sub-Committee inquiry into police and security co-operation between the UK and EU following a UK exit from the EU. We suggested that the UK Government should consider giving priority to deciding whether or not to opt-in to the new European policing co-operation framework in order to continue to access Europol. We warned that failure to do so would have implications for the ability of the police to share information and we welcome the recent announcement from the UK Government signalling the intention to opt-in to Europol.

We have also responded to the UK Parliament’s Justice Committee inquiry on the implications of Brexit for the Justice System and provided written briefings to all MSPs ahead of the Scottish Government debate on the UK Referendum on EU Membership: Impacts on Justice and Security in Scotland, which took place on 1 November 2016.

You can view all our consultations and parliamentary work relating to Brexit here

Working Together to Prevent and Eradicate Hate Crime and Prejudice

The Criminal Law Committee issued a briefing to all MSPs ahead of the Scottish Government debate: Working Together to Prevent and Eradicate Hate Crime and Prejudice.

We believe that tackling hate crimes taking place in communities across Scotland is essential and it is important to ensure that there is clarity in our law to be able to identify these types of crimes. There is a significant amount of legislation passed by both the Scottish and UK Parliaments aimed at preventing and eradicating hate crime and prejudice and we think there would be considerable benefit in bringing them together within a single piece of legislation which would provide clarity, assist with easy identification of the relevant offences and protections afforded, and improve access to justice.

We also said that evaluation of the impact of existing hate crime legislation would be welcome. Currently there are several pieces of legislation on prejudice relating to race, religion, disability, sexual orientation and transgender identity. However there is no statutory aggravation for offences which may be aggravated by prejudice on the grounds of age or gender. In addition to consolidating offences, any review of the law could consider the option of having one piece of legislation on aggravated offences and could also include aspects that aren’t currently covered.

You can read our briefing paper in full here

The Future of Forestry in Scotland

The Rural Affairs Committee has responded to the Scottish Government consultation on the Future of Forestry in Scotland, which will help inform their approach to new arrangements for the governance, development, support and regulation of forestry in Scotland.

While we agree with the overall approach set out in the consultation paper, we note that the paper itself contains little actual detail. The paper does not consider who will be responsible for administering grants, the current responsibility of the Forestry Commission Scotland (FCS), and does not address how the new organisational arrangements will work alongside the private sector.

You can read our full consultation response here

November 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including Scottish Court Fees, the human rights implications of Brexit and brain injury and offending.

Key areas are highlighted below. For more information see the law reform section of the website

Scottish Court Fees

We have responded to the Scottish Government’s consultation on Scottish Court Fees. We believe that plans to introduce the full recovery of civil court costs in Scotland would be damaging to access to justice, particularly for those bringing forward personal injury cases and more vulnerable people.

We have also stated that the proposal to introduce a 24% rise in court fees would be unjust and unjustifiable. We believe it is essential that the courts should provide an independent and impartial forum for resolving disputes between people or organisations and that the state has a duty to help those involved have equality of arms when their cases go to court.

Any new system for court fees would have to ensure they were proportionate, taking into account Lord Gill’s Review of the Scottish Civil Courts, and the findings of Sheriff Taylor in his Review of Expenses and Funding of Civil Litigation in Scotland. We think the focus of any review of court fees should be on redressing the balance between claimants and defenders in personal injury cases. However if the government’s aim is to have a system where 100% of the cost of the courts are covered by fees paid by those involved in the actions lodged, it will be vital to have proportionate fee levels.

Any change to the current system also needs to recognise that there is not a level playing field between personal injury claimants and the insurance companies who are the defenders in those claims. Any changes which fail to recognise this problem risk widening the existing gap.

You can read our response to the Scottish Government here

Human rights implications of Brexit

We have responded to an inquiry issued by the UK Parliament Joint Committee on Human Rights on the impact of the UK’s proposed withdrawal from the EU on the human rights framework and protection of human rights in the UK.

The specific issue of how leaving the EU will impact on human rights touches on a wide range of areas, from the rights to family life or those currently exercising the right to free movement, to data protection and privacy rights relating to how our information is handled and used, and the underlying structure of our equalities law. In general, the rights that are enjoyed in the context of the EU are often found in a variety of sources, but may vary slightly in the detail and options for enforcement and remedy.

Following the UK’s exit from the EU the European Court of Human Rights (ECHR) would still apply and the UK would remain bound it. The Secretary of State for Justice has confirmed that the UK Government does not intend to withdraw from the ECHR at this stage, but is still pursuing a repeal of the Human Rights Act 1998 and a replacement with a British Bill of Rights. However, at this stage, we have not had detailed proposals on what a new Bill of Rights would contain, and so it is difficult to comment on the potential role that this would play in either maintaining EU rights in the UK, or in developing the UK’s human rights laws in a different direction.

You can read our response to the Joint Committee on Human Rights here

Brain injury and offending

The Health and Medical Law Committee and the Criminal Law Committee have responded to a request from the Scottish Parliament Justice Committee for views relating to brain injury and offending and the recent report published by the National Prisoner Healthcare Network.

In particular, the Justice Committee is looking to ascertain whether defence solicitors consider that they have the information and training they need to recognise when brain injury may be present in clients they represent. The Committee has also asked whether the possibility of a client having a brain injury is a factor commonly taken into account by defence solicitors during early contact with their client.

We have stated that defence solicitors are not required to, or generally receive, the training on how to recognise or screen any medical conditions. It has never been the role of a defence solicitor to ask clients screening questions for undetected medical conditions, including potential brain injury. However, we have also stated that a competent defence solicitor will routinely enquire whether the client has any existing medical condition that might be relevant. It is common for persons appearing from custody or presenting a new complaint to reveal that they are in receipt of a form of state benefit awarded only to those with a disability, and this inevitably puts the solicitor on notice that there needs to be further enquiry.

You can read our response to the Justice Committee here

A Scottish approach to taxation

The Tax Law Committee has responded to the Scottish Parliament Finance Committee’s call for evidence on the approaches and principles which would guide the development of a Scottish approach to taxation.

Through the use of its devolved powers over taxation, Scotland has an opportunity to improve its tax system and its approach to specific taxes. It is our view that Scotland should adopt its own approach to drafting tax legislation, rather than following the often convoluted approach of UK legislation. We also believe that there needs to be a structured and regular timetable for tax charges. This could include, for example, an annual or less frequent, Scottish Finance Bill, through which any issues with devolved taxes could be addressed.

We have also suggested that consideration be given as to how to further enhance the resources of the Scottish Government to ensure it has the skills and expertise in relation to taxation policy.

You can read our response to the Finance Committee here

October 2016

The Society’s committees have been working on a number of consultations relating to Scotland’s place in Europe following the result of the referendum. We have also provided comment on the Scottish Government’s legislative programme.

Key areas are highlighted below. For more information see the law reform section of the website.

Public Policy Committee

The Society has established a new Public Policy Committee which will replace the Law Reform Committee from the beginning of the new operating year on 1 November.

The aim of the committee is to take a leadership role in the delivery of the Law Society’s strategy through the development of positions relating to public policy. Particular focus will be given to influencing the creation of a fairer and more just society and being an international centre of excellence in thought leadership.

The committee will have  oversight over all the specialist policy sub-committees and the policy work of a number of committees of the Law Society Council, including; Access to Justice, Civil Justice, Criminal Law and the Legal Aid Committee. The committee will also ensure close collaboration on policy work where required with the Law Society Board, its office bearers and various regulatory committees.

You can read our full strategy, leading legal excellence here.

Scottish Government legislative programme

We have responded to the Scottish Government’s legislative programme announced by the First Minister on Tuesday 6 September.

We are pleased that access to justice features prominently within the programme including bills on third party rights, tackling child poverty, and the domestic abuse bill along with the intention to abolish employment tribunal fees. We also support the principles behind the bills aimed at ensuring an accessible and affordable justice system for people living in Scotland. Once introduced, we will scrutinise the proposals and engage with the government, opposition parties and other key groups to ensure that the resulting legislation is practical and effective.

The Scottish Government programme also confirmed the intention to engage with the legal profession on legal aid. We have pressed for reform to our legal aid system and last year we published a series of recommendations for both civil and criminal legal aid to ensure its long term sustainability and we are pleased that the government has confirmed it will engage with the profession on how this can best be done.  It is essential that people can access the legal advice and services they need regardless of where they live or their financial circumstances and that those who provide that advice can continue to afford to do so.

You can read our press release here.

Scotland’s Place in Europe

The Constitutional Law Committee has responded to two separate inquiries issued by the UK government’s European and External Relations Committee and the Scottish Affairs Committee into the implications for Scotland’s relationship with the European Union following the referendum result.

At the moment it is difficult to be certain as to how the referendum result will affect Scotland’s relationship with Europe. Much depends on the terms of the withdrawal agreement which follows under the Article 50 procedure and the terms of any future relationship between the UK and the EU. We have analysed what we perceive to be the most significant public interest issues arising from the UK’s exit from the EU and also the most significant issues confronting Scotland’s solicitors.

The options for a future relationship between Scotland and the EU include: remaining within the UK and participating in a World Trade Organization (WTO) membership relationship; remaining within the UK which joins the European Free Trade Association (EFTA) and European Economic Area (EEA) agreements; remaining within the UK and participating in a Free Trade Agreement or an Association Agreement with the EU; remaining within the UK and participating in a bespoke relationship with the EU, and seeking to be admitted as a member state of the EU following an independence referendum. Each of these options has advantages and disadvantages as well as political and legal ramifications.

The legal impact of the UK’s exit from the EU will affect the primacy of EU law which will in turn affect the Scottish Parliament and the Scottish Government. There are also aspects of EU law which will have a particular impact on clients, the general public and the legal profession as a whole. Solicitors routinely advise their clients, whether they are individuals or businesses, on the impact of EU law and policies and we believe that arrangements must be made to preserve legal professional privilege for the clients of Scottish Lawyers acting in EU law matters in the EU on their behalf.

You can read our responses to both inquiries here.

September 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations, including the Policing and Crime Bill, non-compete clauses and the CMA’s Report on the Legal Services Market.

Key areas are highlighted below. For more information see the law reform section of the website.

Reforming the Legal Services Market

We have responded to the Competition & Markets Authority's Interim Report on the Legal Services Market. We believe that the legal services sector should be fully transparent from a competition and consumer protection perspective and that providing clear information for consumers is essential to ensure they are making informed choices.

While this particular study focuses on legal services in England and Wales, many of the themes relate to legal services in Scotland and we think consumers across the UK should have easy access to all the information necessary for them to make a fully informed and reasoned choice in selecting a legal services provider. 

We also think that there needs to be change to regulatory processes so that those providing any legal advice or services are regulated to some degree. Consumers purchasing legal services from the unregulated sector, without even being necessarily aware of that, are exposed if the advice is incorrect or something goes wrong.

We believe there is a strong case to have proportionate regulation of the legal services market in each of the UK’s jurisdictions to ensure that consumers enjoy and have the benefit of consistent and assured protection, as is currently afforded to all those seeking advice and representation from a regulated firm.

We have also criticised current legislation which prevents anyone from acting as a notary in England and Wales unless they were admitted there.

The Society is currently in discussions with the Scottish Government in relation to regulating legal services In Scotland.

You can read our full response including our paper to the Scottish Government on the website.

Occupational Pension Schemes

The Pensions Law Committee has responded to a UK Government consultation on plans to cap early exit charges in occupational pension schemes that contain flexible benefits.

The pensions freedoms introduced in April 2015 gave people with defined contribution pensions more options and flexibility about how they fund their retirement. Early exit charges can deter people from exercising these freedoms.

We generally agree with the government’s approach to adopt a cap on early exit charges. However, we’ve warned that there may be some confusion on what constitutes an exit charge, specifically in an occupational pension scheme.

The full consultation response is available to read on the law reform section of the website.

Policing and Crime Bill

The Criminal Law Committee has responded to the Scottish Parliament Justice Committee’s call for evidence in considering its approach to the Legislative Consent Motion on the Policing and Crime Bill.

We are generally supportive of the areas of the Bill where the consent of the Scottish Parliament is required. These areas include: Police Maritime Powers; Cross border powers of arrest; Restoration of littering powers and Firearms.

With particular reference to the cross border powers of arrest we noted that currently there are no powers of arrest available in urgent investigations where an individual is alleged to have committed a serious offence in one UK jurisdiction, where no arrest warrant has been issued and the suspect has turned up unexpectedly in another UK jurisdiction. The provisions at Clause 105 of the Bill will now provide for this in respect of specified offences to be set out in secondary legislation. We support these provisions.

The full response is available to read on the law reform section of the website.

Non-Compete Clauses

The Employment Law Committee has responded to the Department for Business, Innovation & Skill’s call for evidence on non-compete clauses.

We note that non-compete clauses are used in a very wide range of sectors and situations. Properly drafted, such restrictions will protect the interests of the employer without unfairly restricting the employee’s ability to compete. Unduly restrictive clauses will not be upheld by the courts.

The present system, where clauses are routinely included in contracts but do not routinely require to be enforced by the Courts, appears to be working satisfactorily. If the matter does require to be considered by a Court, the legal principles are applied to the facts of the case. This should result in there being restrictions imposed only in appropriate circumstances and for appropriate periods, to protect the legitimate interests of the business where these would have an adverse effect on the employee made subject to the restriction.

We believe that restricting the use of non-compete clauses could have severe adverse effects on businesses and the protection they receive through the law.

The full consultation response is available to read on the law reform section of the website.

August 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including new proposals to introduce a no-blame redress scheme for the healthcare sector, new police powers for stop and search and the Investigatory Powers Bill.

Key areas are highlighted below. For more information see the law reform section of the website

‘No-Blame’ Redress Scheme

The Health and Medical Law Committee has responded to a Scottish Government consultation on proposals to introduce a no-blame redress scheme for the healthcare sector.

We support the broad principles of having a scheme which will allow greater access to justice for patients and the ability to seek financial recompense when something goes wrong. We generally agree that relatively minor injuries or low value claims can result in a positive resolution but by their very nature, medical injury claims can be complicated. We don’t support a proposed cap of £100,000 and have suggested that the limit should be set at £25,000.  

The government will need to ensure that such a scheme will be effective and will improve access to information and explanation for patients. It is also important that any scheme is fair, impartial and accountable and should not add to a blame-culture within the NHS.

The full consultation response is available to read on the law reform section of the website

Stop and Search

The Criminal Law Committee has responded to two separate consultations issued by the Scottish Government on stop and search, including a consultation on police powers to search children and young people for alcohol and a consultation on a draft code of practice.

Overall, we believe that current police powers are sufficient and new powers could result in negative effects. There is a risk that a new power to search a child or young person for alcohol would generate a disproportionate negative perception of children, as evidence shows only a small number of searches actually result in the finding of alcohol. We also considered whether there should be a specific legal power to search people aged 18 and over.

Taking all matters into account; our view is that there would be little benefit in introducing new statutory powers for the police to search children, adults and young people for alcohol.

Our responses to both consultations are available to read on the law reform section of the website

Investigatory Powers Bill

We have urged the House of Lords to support proposals to protect confidentiality between lawyers and clients under the Investigatory Powers Bill, which began the committee stage in the House of Lords on Monday 11 July.

We have expressed concerns that the Bill fails to provide proper protections for confidential communications between lawyers and their clients. We believe legal professional privilege should be enhanced in the Bill and that the power to target such confidential communications should be removed.

There are risks that confidentiality could be breached as the Bill stands and we hope the committee will consider the concerns we have raised and take forward appropriate amends to properly protect client confidentiality.

Recently, the European Court of Justice ruled that bulk data collection is only lawful if it is used to tackle serious crime and this could cause further problems for the Bill in its passage through the House of Lords.

Our written evidence is available to read on the law reform section of the website

Halving the Disability Employment Gap

The Equalities Law Committee has provided written evidence to an All Party Parliamentary Group for Disability to inform its inquiry into how the UK Government can fulfil its pledge to halve the disability employment gap.

The issue of the disability employment gap is a pressing concern in Scotland, as well as in the UK as a whole. In addition to the inequalities experienced in employment, there are wider issues that now need to be considered, such as the growing number of people seeking work through online platforms and the role that internships, work experience and benefits now play in the job market.

We have also taken the opportunity to encourage the Scottish Parliament to re-establish its Cross-Party Group on Disability.

Our written evidence is available to read on the law reform section of the website

Tackling Tax Evasion

The Criminal Law Committee has responded to an HM Revenue & Customs consultation paper on draft legislation and guidance for the new corporate criminal offence of failure to prevent the criminal facilitation of tax evasion.

We have drawn parallels between the draft offence and Section 7 of the Bribery Act 2010, which was designed to change the compliance culture within companies. In relation to the proposed wording of the draft offence, we recommend greater specification on what is meant by a “person associated with the company” to reduce both the uncertainty over interpretation and the risks of inappropriate investigation and prosecution.

More generally, we believe that the proposals could create implications for companies and charities who work in disadvantaged and undeveloped areas of the world.

The full consultation response is available to read on the law reform section of the website

July 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including immigration and asylum tribunal fees, the minimum age of criminal responsibility and the proposed secondary market for pension annuities.

Key areas are highlighted below. For more information see the law reform section of the website

European Union referendum

The vote to leave the EU marks the start of monumental change for the UK and our relationship with the rest of Europe. We will closely monitor the UK Government's negotiations with the EU as they develop during this transitional period through to the implementation of the final agreement. We will ensure that our members’ interests are represented to law and policy makers during this process and we will be assessing what the outcome of the negotiations will mean for our members: for your business, for practice rights, for the domestic legislative process and for our future interaction with the EU.

We have added a Q&A page to the EU referendum section on our website alongside the discussion paper we issued before the referendum, which considers the position of solicitors who are currently working in other EU jurisdictions as well as how particular areas of UK and Scots law stand to be affected by a UK exit from the EU.

You can find this information on the international section of the website

Minimum Age of Criminal Responsibility

The Criminal Law Committee has responded to a Scottish Government advisory group consultation on raising the age of criminal responsibility from eight to 12.

Scotland’s age of criminal responsibility is currently the lowest in Europe and we fully support the advisory group’s recommendation to raise it to 12. The interests of children must be paramount and it is crucial that their welfare is the focus of attention even in the difficult circumstances of offending behaviour. We do not think that children under the age of 12 should have their actions recorded as criminal.

We are concerned about the advisory group’s suggestion that the police should have an unspecified power of detention where a child’s parents or carers are not willing to cooperate with necessary enquiries by police or social workers.

The full consultation response is available to read on the law reform section of the website

Developments in Environmental Justice in Scotland

The Environmental Law Committee has responded to a Scottish Government consultation on whether further change is needed in the justice landscape to protect wildlife and the environment, and to provide better access to justice in civil environmental cases.

The SNP made a manifesto commitment in 2011 to the effect that it had received representations calling for the creation of an Environmental Court in Scotland. We believe, however, that environmental justice is much wider than the cases which come to court and we are concerned that this consultation considers only court reform rather than considering the wider system of environmental justice in Scotland.

It is our view that this consultation is too narrow in its scope and does not embrace the range of ways in which environmental justice can be sought.

The full consultation response is available to read on the law reform section of the website

Immigration and Asylum tribunal fees

The Immigration and Asylum Law Committee, Administrative Justice Law Committee and Access to Justice Committee have responded to a consultation from the Ministry of Justice on proposals to increase the fees currently charged in the First-tier Tribunal, and the introduction of fees for permission to appeal applications and for appeals heard in the Upper Tribunal.

We disagree with all proposals on fees for immigration and asylum appeals and are concerned by this approach to the duties and obligations under the Equality Act 2010. We do not believe that restricting access to justice to several groups of First-tier Tribunal service users can be considered justifiable on the grounds of following the principles of ‘Managing Public Money’. Restricting access to justice to some of the most vulnerable members of our society for financial reasons cannot be considered as acceptable policy in a democratic society founded on the rule of law.

The full consultation response is available to read on the law reform section of the website

Taxi and Private Hire Car Licensing

The Licensing Law Committee has responded to a Scottish Government consultation on the impact of modern technology on the licensing regime for taxis and private hire cars.

We believe that the influence of modern technology has created potential confusion between the separate regimes and that the Scottish Government should consider whether a fundamental overhaul of the two tier system, as it operates at present, is needed.

In the interests of public safety, both operators and drivers will have to continue to be licensed, so there needs to be clear thought given to whether further licensing is necessary.

The full consultation response is available to read on the law reform section of the website

Secondary Annuity Market

The Pensions Law Committee has responded to two separate consultations on the proposed secondary market for pension annuities.

The creation of a secondary annuities market is intended to extend greater flexibility and freedom to people who had little choice but to buy an annuity with their pension pot. We have responded to a consultation from HM Revenue & Customs which has laid out the proposed detail of the tax framework for the secondary market.

We have also responded to a Financial Conduct Authority (FCA) consultation on their proposed rules and guidance for these new regulated activities.

The full consultation response is available to read on the law reform section of the website

June 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including the Scottish Law Commission discussion paper on prescription, proposals for a British Bill of Rights and compensation for the loss of pension rights in Employment Tribunals.

Key areas are highlighted below. For more information see the law reform section of the website: www.lawscot.org.uk/law-reform

Pensions Law

The Pensions Law Committee has responded to a consultation paper from a Working Group of Employment Judges to review the 2003 booklet ‘Compensation for Loss of Pension Rights: Employment Tribunals’ in order to reflect recent changes in pension law and practice.

We agree with a number of the proposals in the paper. However, the working group has proposed that the tribunal operates a default assumption that claimants will retire at state pension age. We expect that in a large number of cases there will be a high chance that employees will have left employment before state pension age for a reason other than dismissal/redundancy and therefore, it would be useful to understand what type of evidence would be required in order to depart from the proposed default position.

We’ve also warned that the guidance needs to be clear on the distinction between “complex” and “simple” cases. Guidance will be needed as to when the complex approach will apply over the simple approach and on the factors which will determine which approach should apply.

The full consultation response is available to read on the website

British Bill of Rights

The Society has commented on the proposals to introduce a British Bill of Rights following the Queen’s Speech on Wednesday, 18 May 2016.

We believe that the Human Rights Act 1998 is a key component of our society and has been extremely effective in protecting our rights through the domestic courts in the UK. However we think there is room for improvement of the Act, and the proposed British Bill of Rights should build on and enhance the protections we currently have.

We also feel that a stronger judicial role may be needed if a Bill of Rights is introduced. The current arrangements under the Scotland Act 1998 provide a much stronger way of dealing with non-compliance with European Convention on Human Rights (ECHR) by Scottish Ministers than the HRA provides for the UK Parliament and UK Ministers. It’s important to remember that as long as the UK remains a party to the ECHR, the ECHR rights will be binding on the UK and can, through the Human Rights Act, be actionable in UK domestic courts. If however, the ECHR is no longer directly incorporated into the UK’s domestic law, individuals would have to go to the ECtHR in Strasbourg to enforce their rights under the convention. This was the situation prior to the enactment of the Human Rights Act in 1998 and in our view a return to this would be a backwards step.

A full transcript of the Queen's speech can be found on the GOV.UK website

Commission and Diligence in Family Actions in the Civil Courts

The Family Law Committee provided comments to the Scottish Government on suggestions that the law needs to be changed in relation to the way commission and diligence is exercised in family actions in the civil courts.

In general, we believe that the existing law is appropriate. Each case must be assessed on its own circumstances and the discretion of the court is a suitable safeguard in relation to confidential information. The types of issues in family cases where commission and diligence may be used cover a range of matters, including financial as well as welfare. Although we agree that the existing law is adequate, we also agree that, in cases where information being sought relates to children or vulnerable adults who have received care and support services, particular regard should be given to confidentiality and welfare issues.

We have also suggested considering the introduction of a rule stating that havers should always have to lodge a sealed envelope where information is being disclosed in respect of any child or vulnerable adult.

The full consultation response is available to read on the website

SLC Discussion Paper on Prescription

The Obligations Law Committee responded to the Scottish Law Commission’s Discussion Paper on Prescription. One of the main issues reviewed in the paper is the issue of prescription in relation to claims relating to latent damage. It follows the judgments of the UK Supreme Court in David T Morrison & Co Ltd v ICL Plastics Ltd in 2014.

We are wholly supportive of the SLC’s review of this area of law. For many years in Scotland we consider that parties have been exposed to unnecessary legal costs due to the absence of standstill agreements and therefore the need for protective proceedings to be raised. This, and other issues, has been exacerbated by the UK Supreme Court’s decision, which has led to considerable uncertainty surrounding the commencement date for prescriptive periods.

We also feel that many actions are currently being raised to avoid a time-bar argument that could otherwise be dealt with out of court.

The full consultation response is available to read on the website

EU Referendum

As a firmly non-partisan organisation, the Law Society is not advocating one view or another ahead of the June 2016 referendum on EU membership. We recognise that there are differing views among our membership, just as across our society as a whole, but a vote to leave the EU raises a number of legal issues and questions that are important to for us all to consider – whether as a solicitor or as a client in Scotland, the UK and across the EU.

To help inform the debate and having sought our members' views, we have issued a discussion paper on the issues raised by the referendum on EU membership. This is available to read on our website

May 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including the Investigatory Powers Bill, Child Safety Online and the criminal offence of domestic abuse.

Key areas are highlighted below. For more information see the law reform section of the website: www.lawscot.org.uk/law-reform

Investigatory Powers Bill

The Privacy Law Committee submitted written evidence and amendments to the Investigatory Powers Bill ahead of the Committee stage in the House of Commons on 12 April.

We’ve warned that despite moves to protect client communications with solicitors, the Bill could still fall short. Confidential information between a lawyer and a client contributes to the rule of law, the proper functioning of the courts and is in the interests of justice. This information requires protection as it’s essential to ensure a client can speak freely with his or her lawyer and that the advice they receive will not be disclosed to the police, the security service or the media.

We have also pointed out potential risks relating to the requirement for telecommunications operators to retain data.

Our written evidence and amendments are available to read on the website

The Abusive Behaviour and Sexual Harm (Scotland) Act

The Abusive Behaviour and Sexual Harm (Scotland) Bill was passed by the Scottish Parliament on 22nd March 2016. The new Act includes, amongst other things, provisions setting out a new specific domestic abuse aggravator; a new offence for the non-consensual sharing of private and intimate images; a requirement for juries in sexual offence cases to be given specific directions by the trial judge where certain conditions apply; and reforms to the system of civil orders available to protect communities from those who may commit sexual offences.

More details on the Bill are available on our website

Criminal offence of domestic abuse

The Criminal Law Committee responded to a Scottish Government consultation on a draft provision to create a specific offence of ‘abusive behaviour in relation to a partner or ex-partner’.

We believe that clarity is needed on the proposals if it is to help people affected by either physical or psychological abuse. It will also be essential that any offence extending beyond physical abuse or behaviour is clearly defined.

We have also called for support for those who have either emotionally or physically abused their partners, in addition to providing support for victims of abuse, so they can recognise the impact of their abusive behaviour, and learn how to change their behaviours to prevent reoccurrence.

The Law Society’s full consultation response can be found on our website

Child Safety Online

The Criminal and Privacy Law Committees have responded to a consultation paper by the UK Government on age verification for pornographic websites.

The ‘Child Safety Online: Age Verification for Pornography’ consultation identifies the problem of a large number of young people across the UK being able to access adult websites on their computers – up to 20% of those under 18 and 13% of those aged six to 14 -  and the damaging effect this can have. The UK Government is consulting on proposals which would require age verification for accessing pornographic websites

We have warned that the proposals for age verification could be counterproductive and potentially drive those producing online pornographic content further afield to websites hosted in countries that would not cooperate and result in even less protection for children.

The Society’s full consultation response can also be found on our website

Clandestine Civil Penalty

The Immigration and Asylum Law Committee responded to a UK Government consultation on proposals to improve the UK’s clandestine civil penalty regime to encourage more hauliers to secure their vehicles more effectively.

We believe that strengthening the civil penalty regime on the transportation industry will protect the passage and entry of goods into Britain, but may further prevent genuine refugees entering the UK. We have highlighted the need for the UK to make efforts to ensure that there are safe and accessible ways for individuals to make a claim for asylum with the UK.

We also expressed concerns about the effect that higher penalties could have on smaller transportation businesses and suggested that a system of grants or economic assistance may be necessary to allow small business to invest in new technology to secure their vehicles.

The Law Society’s full consultation response can be found on our website

Adults with Incapacity

We’ve proposed major changes to the law for adults with dementia, learning disabilities and other causes of incapacity following a comprehensive review of the legislation and human rights standards intended to protect vulnerable people.

The Society’s Mental Health and Disability Committee responded to a Scottish Government consultation on a report by the Scottish Law Commission with the view that the current system frequently and seriously lets down vulnerable adults.

In particular, we believe that the current position under the Adults with Incapacity (Scotland) Act 2000 is inefficient and ineffective and the fragmented operation across the UK jurisdictions wastes public resources and drains legal aid funds.

The Society’s full consultation response can also be found on our website

We have urged political parties to commit to updating or reviewing specific areas of legislation in our priorities for the next Scottish Parliament. The full document can be found on our website.

April 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including the Lobbying (Scotland) Bill, Abusive Behaviour and Sexual Harm (Scotland) Bill and Mandatory Pay Gap Reporting.

Key areas are highlighted below. For more information see the law reform section of the website.

Lobbying (Scotland) Bill

In our briefing paper ahead of the stage 3 debate on the Lobbying (Scotland) Bill we’ve recommended that the Bill be further extended to include emails and provide clarity for people who communicate using British Sign Language (BSL)

The proposals in the Bill, which will see the creation of a new lobbying register, already require MSPs to report face to face meetings – whether in person or using audio visual technology.

Our stage 3 briefing paper and amendment to section 1 of the Bill are available to read on the website.

Land and Buildings Transaction Tax (Amendment) (Scotland) Bill

Our property and tax law committees have updated members on the important changes brought about by the LBTT (Amendment) (Scotland) Bill.

The legislation will introduce a new additional dwelling supplement on purchases of additional residential properties in Scotland (such as buy-to-let properties and second homes) of £40,000 or more. The additional dwelling supplement is 3% of the total purchase price and will be payable from 1 April 2016.

We strongly encourage all members to read the Revenue Scotland Guidance and also the FAQ materials on the Revenue Scotland website.

More information about the bill, including our stage 3 briefing, can be found on our website.

Mandatory Gender Pay Gap Reporting

The Equalities Law Committee responded to a UK Government consultation on draft regulations intended to increase transparency around the differences in pay between men and women.

The Society believes that the regulations should include provisions requiring those organisations which identify a gender pay gap to set out a plan of action to remedy the gap and also recommended that that the definition of a ‘relevant employer’ should be widened to include more businesses and the definition of ‘pay’ should include deferred remuneration and overtime.

The Law Society’s full consultation response can be found on the website.

Abusive Behaviour and Sexual Harm (Scotland) Bill

In our briefing paper ahead of the stage 3 debate on the Abusive Behaviour and Sexual Harm Bill, our Criminal Law committee welcomed measures which help to improve how the justice system responds to abusive behaviour, including domestic abuse, but expressed concerns about the fragmented approach and lack of clarity surrounding the law in this area.

There have been a number of recent changes to criminal law, including the offence of threatening or abusive behaviour in terms of s38 of the Criminal Justice and Licensing (Scotland) Act 2010 and the offence of stalking in s39 of the same Act, and while the Abusive Behaviour and Sexual Harm Bill contains a “Domestic abuse aggravator”, the Scottish Government is currently consulting on a distinct offence of domestic abuse.

The committee also highlighted that the proposals for mandatory jury directions relating to sexual offences represent a major departure from existing practice, where the distinct roles of a judge and a jury are clear.

Our stage 3 briefing paper is available to read in full on the website.

Transfer of functions of the Employment Tribunal to the First-tier Tribunal for Scotland

The Employment Law Committee have raised a number of concerns in their response to the Scottish Government’s consultation on the draft Order in Council that makes provision to transfer specified functions of the Employment Tribunal to the First-tier tribunal for Scotland.

Issues highlighted include the more restrictive definition of a ‘Scottish case’, the need to develop the Scottish system consistently with England and Wales and the potential impact on expertise and diversity.

Our full response can be found on the website.

Scottish Courts and Tribunals Service Review

We’re looking forward to working our partners in the justice sector following the publication of the SCTS Evidence and Procedure Review which sets out its next steps for improving the court system.

Our Criminal Law Committee welcomed the review and fully support increased use of new technologies in our courts and wider justice system to make them more streamlined and effective for everyone involved.

Scotland Act 2016

The Scotland Act 2016 became law on 23 March 2016. This important piece of constitutional law seeks to implement the report of the Smith Commission which was set up in the wake of the Scottish independence referendum in September 2014.

The Act provides for the permanence of the Scottish Parliament and sets part of the Sewel Convention on a statutory footing (an issue which provoked a Parliamentary controversy between the Advocate General and a number of Crossbench and Opposition Peers).

The Act also provides the Scottish Parliament with increased powers covering income tax, air passenger duty, aggregate tax, welfare benefits and employment Support. The Parliament will also have power over the Crown Estate, Equal Opportunities, Tribunals – including Employment Tribunals, some aspects of road traffic law, the British Transport Police, consumer advocacy and advice, certain gaming machines and abortion.

The Society was closely involved in briefing MPs, and Peers of all parties during the passage of the Act and prepared many amendments to clarify aspects of the legislation. We also briefed and gave evidence to the Scottish Parliament’s Devolution (Further Powers) Committee to assist it in considering the bill. The Committee’s final Report cites the Society’s views on a number of aspects of the legislation.

The final report, and our other briefings, can be found on our website.

March 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including the Criminal Verdicts Bill, LBTT Amendment Bill and post-legislative scrutiny of the Family Law Act 2006.

Other key areas are highlighted below. For more information see the law reform section of the website

Courts and tribunals fees and charges inquiry

Michael Clancy, director of Law Reform at the Law Society, joined the president of the Law Society of England and Wales Jonathan Smithers and Chantal-Aimée Doerries, Chair of the Bar Council, to give evidence to the Commons Justice Committee on court and tribunals fees and charges on Tuesday 9 February.

The Commons Justice Committee raised questions on the impact of the court-fee system for access to justice, cross-subsidisation and the remission-fee system, domestic and international competiveness and employment tribunals.

Our full response and a link to the oral evidence session can be found on our website

Scotland Bill

The Scotland Bill, which seeks to implement the Smith Commission Report and expand the powers of the Scottish Parliament and Scottish Ministers, has now been considered by the House of Lords. The Committee and Report stages completed in February but issues remained concerning the extent to which the bill placed the Sewel convention fully on a statutory footing.

Our concerns about clause 68, which provides the Secretary of State with excessively wide order making powers, were echoed by others and noted by the UK Government. The Minister, Lord Dunlop undertook to bring forward Government amendments at Third Reading to amend the bill.

Links to more information about the bill can be found on our website

Transfer of functions of the Employment Tribunal to the First-tier Tribunal for Scotland

The Scottish Government is consulting on the draft Order in Council that makes provision to transfer specified functions of the Employment Tribunal to the First-tier tribunal for Scotland. The draft Order is made under clause 37 of the Scotland Bill and allows for the transfer of tribunal functions which relate to reserved matters, and deal with Scottish cases, to a Scottish Tribunal. Clause 37 also provides that those functions will be transferred in accordance with the provisions of an Order.

Our Employment Law Committee is looking closely at the issues raised by the draft Order and will be responding to the Scottish Government’s consultation in due course. We have also been attending stakeholder discussions with BIS.

The Government’s consultation can be found on their website

Lobbying (Scotland) Bill

Our Lobbying Working Party welcomed amendments to the bill, which proposes to introduce a statutory register of lobbying activity in Scotland, that mean virtual meetings held using video-conferencing technology will be included. We stated in our written evidence that the bill should include other forms of communications beyond face-to-face meetings if it is to meet the Scottish Government's stated policy aims of ensuring transparency and openness.

We believe the bill could have been further extended to include all forms of communications including letters, emails and phone calls, but this is a step in the right direction in improving transparency and public confidence.

We’re also pleased that the bill will now include communications with special advisers in addition to government ministers and that the definition of special advisers has been clarified within the bill.

Our written evidence and stage 1 briefing paper are available to read on the website

Draft Investigatory Powers Bill

We have welcomed recommendations in the House of Lords and House of Commons Joint Committee on the Draft Investigatory Powers Bill report and were pleased to see that the concerns we raised about legal professional privilege have been recognised and that the committee recommended that it should be expressly protected in primary legislation.

In our response to the Joint Select Committee call for written evidence we emphasised our view that legal professional privilege should be expressly protected within proposed legislation rather than through a code of practice, as had been included in the draft bill in an attempt to mitigate against any possible abuse of the powers where ‘sensitive professions’, including lawyers, are concerned.

We look forward to engaging with the UK Government, as has also been recommended in the report, at the next stage of the bill’s progress.

Our written evidence is available to read on the website

Independent National (whistleblowing) officer

Our Health and Medical Law Committee responded to a Scottish Government consultation on proposals for the introduction of the role of an Independent National (Whistleblowing) Officer. The proposed role is intended to provide an independent and external review on the handling of Scottish healthcare whistleblowing cases.

We believe setting out clear parameters and the powers of an INO would also be essential to ensure consistency in dealing with any issues or complaints and that the role should have prescribed powers if it is to address any gaps not covered by existing policies.We have recommended, amongst other things, that and that the INO should provide a ‘best practice’ whistle blowing policy that all health boards adopt as a minimum standard of practice and that the powers should include the ability to compel a public body to provide evidence and to enforce recommendations if required.

Our response is available to read in the law reform section of the website

General Medical Council consultation on draft confidentiality guidance

The Health and Medical Law Committee, as well our Privacy Law and Mental Health and Disability committees, also responded to the General Medical Council’s Council’s public consultation on draft guidance on confidentiality. We have a number of concerns around the inclusion of Scottish legislation and we hope to work with the GMC to take things forward.

Our full response can be found on the website

Cross-border portability of digital services

Our Intellectual Property committee responded to the UK Intellectual Property Office’s call for view on the European Commission’s proposal for legislation on cross-border portability of digital services which would allow holiday makers travelling in Europe to access online content, such as digital film, music, sport and TV services.

Although we welcomed the intent, we believe the proposed legislation is too timid and should also cover online content services purchased or obtained by a subscriber within the EU, even if that is outside of their home country. This would align with the Commission’s strategy to allow for wider online access to works by users across the EU and would be more straightforward for both the consumers and the providers.

The Law Society’s full consultation response can be found on the website

Land and Buildings Transaction Tax (Amendment) (Scotland) Bill

Our Tax Law Committee has raised concerns that a person buying their first home could be in a worse financial position than someone moving into another residence if proposals for the new tax supplement go ahead.

We also have called for reliefs to the additional tax on second homes to ensure that people who may temporarily have ownership of two properties are not penalised by the new tax and have recommended a grace period of up to 30 days to allow delayed transactions to complete without purchasers having to pay the 3% supplement where they are replacing a main residence.

Our full response is available to read on its website

February 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including the Lobbying Bill, the Transport Bill, the Health and Tobacco Bill, Trade Union Bill (see below) and the Transplant Bill. Other key areas of work are highlighted below. For more information see the law reform section of the website.

Land and Buildings Transaction Tax

The Law Society’s Tax Law Committee has responded to the Scottish Parliament call for evidence on a proposed Land and Buildings Transaction Tax supplement on additional residential homes.

The supplement on purchases of additional residential properties, such as buy-to-let properties and second homes, was proposed in the Government’s Draft Budget for 2016-17 and is expected to come into effect from 1 April 2016.

Our full response can be found on our website

 

 

Abusive Behaviour and Sexual Harm (Scotland) Bill

The Society’s Criminal Law Committee submitted its briefing or MSPs ahead of the Stage 1 debate on the Abusive Behaviour (Scotland) Bill on 28 January. It highlights that while the Society supports the policy objectives of the bill and would welcome any measure which helps to improve how the justice system responds to abusive behaviour including domestic abuse and sexual harm, it continues to have  reservations as to whether the bill as drafted would help improve the justice system to do so. 

The committee has raised  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.

Full briefing available on our website

  

Apologies (Scotland) Bill

We welcomed the passing of the Apologies (Scotland) Bill at stage 3. The bill had been amended in following concerns raised by our Health and Medical Law Committee to exempt apologies made under the duty of candour procedure as set out in the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill from the Apologies Bill. 

The committee had proposed such an amendment to members of the Justice Committee in November.   Minister for Community Safety and Legal Affairs Paul Wheelhouse MSP tabled the amendment  at December’s Justice Committee meeting at the Scottish Parliament. Both the Apologies Bill and the Health Bill provided for two very different definitions of an apology - meaning the law of unintended consequences may have applied, causing confusion and leading to an unforeseen or unanticipated consequence.  If this had happened, it would have meant that the policy intentions behind both bills may have failed. 

Full details on our website

Immigration Bill

We submitted a briefing paper to MSPs ahead of their debate on the Bill on Thursday 21 January 2016. The Bill had its second reading in the House of Lords in December 2015.  Our Immigration and Asylum Committee also responded to the UK Parliament Public Bill Committee’s call for evidence in October 2015. 

Full details on our website

Regulations on contributions for police station advice cases

The Society submitted its views on regulations on legal aid for police custody suspects. The new regulations are due to go before the Scottish Parliament Justice Committee this month. We support the regulations proposals to remove the need for suspects to pay a contribution towards the cost of legal advice they receive while held in custody at police stations. 

The Society believes that the regulations recognise the concerns raised by Lord Bonomy in his 2015 report - that requiring suspects to pay a contribution towards legal advice is likely to dissuade some suspects from taking up their right to legal advice. Removing the requirement to pay a  contribution toward legal fees in police station advice cases would mean that members of the public who needs the services of a solicitor whilst questioned in a police station would get free automatic legal assistance. It also removes the practical difficulties involved in trying to assess finances and collect contributions when the suspect will not have the relevant documentation to hand.

For more information see the website.

Letting Agent regulations

The Society has actively engaged with the Scottish Government over the past 12 months to help ensure that new regulations will improve letting agency standards. The Society submitted a number of suggestions which have been taken on board. The regulations now take into account that solicitors are required to have indemnity to practice and will not be required to take out additional cover. They have also been amended to take into account that solicitors are already required to take anti money-laundering measures and conduct checks.

Concerns remain about a potential for conflict of interest if solicitors are subject to two different regulatory regimes. We would also think that further work is needed to direct letting agents as to a course of action when conflict arises. Issues around confidentiality and whether solicitors will also be subject to a fit and proper test for letting agents are still under discussion with the government. Part 4 of the Housing (Scotland) Bill creates a register of letting agents and requires letting agents to register operating as a letting agent without registration is a criminal offence.

Full details here

Third Party Rights Bill

The Law Society of Scotland welcomed the Scottish Law Commission’s Draft Third Party Rights Bill which seeks to put the common law position on statutory footing and will give third parties to a contract, the statutory right to create an enforceable right. Under the current common Scots law, the parties to a contract can create an enforceable right in favour of a third party, known as jus quaesitum tertio. The Society supports the intention of the Third Party Rights Bill and believe that the legislation will provide clarity and certainty. It is a significant improvement and development on the current common law. The Society has put forward some small suggestions to improve the clarity of the Bill and ensure the scope of the Bill fully achieves the policy intent.

Our response can be found on our website

Human Rights

This month we also submitted our preliminary views on the proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights. Our Director of Law Reform Michael Clancy has been invited to give evidence before the Scottish Parliament’s European and External Relations Committee on 4 February. 

It’s the Society’s view that the HRA has had a positive impact on the development of law and policy both in the UK and in Scotland. We therefore support the retention of the HRA, but we also accept that there is room for improvement of the Act. We believe that the HRA can be improved by the following amendments:-

a) by amending Section 10 to provide a more accountable parliamentary way to amend incompatible legislation in the light of a declaration of incompatibility by the courts;

b) by including Article 13 - right to an effective remedy in Schedule 1;

c) by expanding and clarifying the application of the HRA to private bodies exercising public functions or providing public services.

Full briefing is avaialable on our website

 

 

January 2016

In addition to the work highlighted below, we also submitted evidence on the Burial and Cremation (Scotland) Bill and the Bankruptcy (Scotland) Bill.  We also submitted stage 1 briefing on the Land Reform (Scotland) Bill and the charity law sub-committee responded to an OSCR consultation on its draft Charity Trustee Guidance.  Full information on all of these and more on our website.

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

Our health and medical law committee submitted stage 3 amendments ahead of the stage 3 debate on 17 December.  We called for the legislation to be extended to cover e-cigarettes, until such time more research was undertaken as to their long term effects, as well as for the driver to be held vicariously liable for other smokers in the car, along with a statutory defence for the driver and other smokers if they reasonably believed their passengers were over the age of 18 or took reasonable action to prevent others from smoking.  These amendments were not taken forward by any MSPs, however Jackson Carlaw MSP tabled our last proposed amendment, which called for a review of the legislation after 5 years.  This was defeated during the debate. 

Our full evidence and amendments can be found on our website

Draft Investigatory Powers Bill

Tim Musson, convener of our Privacy Law Committee gave oral evidence to Westminster’s Joint Committee on the Draft Investigatory Powers Bill on 14 December, and we submitted written evidence on 22 December.  We have serious concerns in relation to legal professional privilege and the provisions of the Bill.  Legal professional privilege is key to the rule of law and is essential to the administration of justice.   It  should be expressly protected in the proposed legislation and the proposal to protect it through a code of practice is not satisfactory.  We have called for the UK Government to clarify their reasoning as to why there is no such protection. 

Our full response and a link to the oral evidence session can be found on our website

Lobbying (Scotland) Bill

We submitted our stage 1 briefing to MSPs ahead of the stage 1 debate on 7 January.  In our briefing we reiterate what we have said at all stages of the Bill and to previous consultations, if the policy objectives of transparency and openness are to be achieved, then the scope of the Bill needs to be widened to include more than oral face to face communications.   We are pleased to see that the Health and Sport Committee have also suggested that the Scottish Government review this position.  It is worth noting that the English legislation as provided for in the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 is to include any ‘oral or written communications’.    This will include e-mails and telephone calls.  

Our full briefing can be found on our website

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

Convener of our health and medical law committee Alison Britton gave oral evidence to the Scottish Parliament’s Health and Sport Committee on 1 December.  While we are not in a position to comment on the policy merits of changing the organ donation system to a ‘soft opt-out’ system, we recognise the aim of the Bill which is to increase the amount of organs available for donation, and there is a pattern of evidence which suggests that countries with a soft opt-out system have higher rates of organ donation.   We also highlighted that while supportive of the proposal for a person to be able to appoint a proxy to make the decision on organ donation, that the Bill does not make it a requirement that the proxy either consents to or needs to be aware of their appointment.  We suggest that effective proxy decision making can only be made where the proxy has a clear idea of what the individual would have wished. 

Our full written evidence and link to the oral evidence session is on our website

Impact of the EU Referendum

Michael Clancy, Director of Law Reform, gave evidence to the Scottish Parliament’s  European and External Relations Committee on 17 December about the impact of the EU referendum on Scotland. As a Society we are remaining neutral on the question as to whether the UK should remain in or leave the EU but we are examining the potential implications from the legal perspective.

Our full written evidence is available on our website

Criminal Law Committee

The criminal law committee responded to two consultations in December.   The Consultation on Prostitution Law Reform (Scotland) Bill proposes to decriminalise activities associated with the buying and selling of sexual services and to strengthen the laws against coercion in the sex industry, advocating the New Zealand model: a set of laws and policies which prioritise the safety, rights and health of people currently selling sex.  We are not in a position to comment on the policy aims of the Bill, however we make reference to s46 of the Civic Government (Scotland) Act 1982, and believe that reform in this particular area of law is required.

We also responded to the Scottish Government consultation on Proposals to strengthen the presumption against short periods of Imprisonment. In our response we state that we do not believe that a sentence of less than 12 months affords any possibility of meaningful work designed within the prison system to reduce reoffending or to learn new skills. The purpose of a sentence of this period can only be that of retribution and confinement.   We suggest that were the presumption against custody to be fixed at six months, it may ensure that the worst and most recurrent summary offenders will still be aware that they face a period of imprisonment, while rendering it less likely than those who are merely a public nuisance face repeated incarceration. 

Full responses to both of the above can be found on our website