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