King’s Speech, elections and charging claims

The latest policy update (covering July) from the committees covers many topics including the Transfer of Undertakings (protection of employment) regulations and the Circular Economy (Scotland) Bill.

King’s Speech

On Wednesday 17th July, King Charles III delivered the Labour Government’s first King’s Speech in the House of Lords, marking the start of the parliamentary year.

Key elements of speech include the following:

• Replacing the Rwanda asylum policy with new border security, asylum and immigration legislation
• Beginning the process of repealing and replacing the Northern Ireland Legacy legislation
• New employment legislation proposing significant changes to employment rights, as well as draft legislation on equal pay for ethnic minorities and disabled people
• Changes to arrangements for working with devolved governments and the UK’s trade and wider relationship with the EU
• Constitutional reforms, notably involving the make-up of the House of Lords
• The creation of a new Scottish-headquartered renewable energy company, Great British Energy

Of the 36 Bills and four draft Bills included in the speech, it appears that 26 may apply to Scotland to a greater or lesser extent, giving the Law Society of Scotland’s Policy team and network of volunteer experts much to consider for the year ahead.

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Scottish Elections (Representation and Reform) Bill Stage 1 briefing

In advance of the Stage 1 debate on the Scottish Elections (Representation and Reform) Bill in the Scottish Parliament on Thursday 27th June, the Law Society issued a briefing to MSPs.

The briefing highlighted the importance of all potential electoral changes being subject to suitable consultation and appropriate scrutiny and welcomed the lead committee’s request for the Scottish Government to provide full details for matters it intends to take forward by secondary legislation

The Society considers that there may be some practical hurdles created by enabling those with limited right to remain to become elected and suggested that the presiding officer should only postpone elections where it is necessary to do so. It therefore welcomed the lead committee’s view that the Bill could be strengthened by the addition of a requirement for a statement of reasons to be published where a decision is taken on rescheduling and called for further clarity on the objectives of the Electoral Management Board for Scotland (EMB) and how it will be funded.

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Charging claims management companies and other professional representatives

The Law Society’s Consumer Law Sub-Committee responded to the most recent Financial Ombudsman Service (FOS) consultation on charging claims management companies (CMCs) and other professional representatives.

The Committee welcomed the additional detail provided in the second consultation paper, but noted that it had served to compound concerns raised in its first response.

The Society continues to have concerns that the charging proposals will affect those most vulnerable in society, given that solicitors are likely to build these additional costs – however small – into their own fee regime, which ultimately will be borne by the consumer, who may have limited means.

The response also expressed concerns regarding a fee of £75 being charged to solicitors in cases where they have acted, and secured, an outcome in favour of the consumer. It notes the FOS is not currently proposing that a mechanism is in place to recover this fee from a respondent where a determination is made against them as the wrongdoer. This contrasts with the position in other dispute resolution services – for example, court fees recovered by the successful party against an unsuccessful party when determined by the courts.

The Committee remains of the view that these proposals are likely to affect the choice that is offered to consumers when seeking to appoint a solicitor to raise a complaint to the FOS.

Read the Law Society’s response

Consultation on clarifications to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and abolishing the legal framework for European Works Councils

The Law Society’s Employment Law Sub-Committee responded to the Department for Business and Trade’s consultation on clarifications to the Transfer of Undertakings Regulations and abolishing the legal framework for European Works Councils.

The response suggested that to exclude workers by explicit regulation leaves such individuals in a potentially difficult and vulnerable position, especially in industries where there are a high proportion of TUPE transfers and SPCs (service provision changes) – examples in the consultation include cleaning, catering, building maintenance and security. Workers potentially will get left behind, with the result that unless the transferor can use them elsewhere in the business, they will be dismissed. It could also create problems for the transferee, who may struggle to recruit to fill those positions, otherwise filled by workers left with the transferor. Those recruitment and administrative/time costs will need to be factored into the transfer (and indeed may run contrary to the stated aim to reduce the administrative burden and costs of the TUPE regulations for businesses).

Read the Law Society’s response

Circular Economy (Scotland) Bill

In advance of the Stage 3 proceedings on the Circular Economy (Scotland) Bill in the Scottish Parliament, the Law Society issued an MSP briefing.

The Society noted that the Bill is, in large part, a framework Bill and understands the potential benefits of the framework approach – for example, allowing greater flexibility in designing and implementing the underlying policy proposals. It pointed out, however, that there must be a balance between the framework approach and the need for clarity in the law, and it must be transparent and comprehensible for those directly affected by legislation.

The Society emphasised that robust consultation on secondary legislation under the Bill is essential, to provide an opportunity for stakeholder scrutiny and engagement.

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Land Reform Scotland Bill

The Convener of the Law Society’s Property and Land Law Reform Sub-Committee, Gail Watt, gave evidence to the Net Zero, Energy and Transport Committee on 18th June.

The Society’s position is that the relevant size thresholds in the Bill need to be underpinned by robust evidence and that greater clarity is required in relation to some of the key terms, including “sustainable and regenerative agriculture”.

The Society has also raised concerns about the proposed resumption provisions; and highlighted the need for clear expectations around what is to be included in the proposed Land Management Plans, along with suggesting a more flexible and simple approach to the proposals around legislating for a model lease for environmental purposes.  

Watch the evidence session and find out more about the Law Society’s work on the Bill