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