Recent work of the Law Reform Department, including on criminal legal aid, self-directed support, drink driving, adults with incapacity, Scotland Act, partnerships

Criminal legal aid

Stage 2 of the Scottish Civil Justice Council and Criminal Legal Assistance Bill took place on 13 November. The Society voiced its disappointment over the Justice Committee’s rejection of amendments concerning the proposed levels at which a person would become liable to make a contribution in summary criminal cases, and the requirement for solicitors to collect contributions.

The President and the Legal Aid Convener have since attended a meeting with the Cabinet Secretary for Justice and it is clear that there remain some fundamental areas of disagreement. Following the meeting, the Cabinet Secretary wrote stating that he was prepared to discuss practical proposals that might help firms, but maintaining that solicitors remained best placed to collect the contributions: see www.lawscot.org.uk/news/press-releases/2012/november.

The Society will continue to press for change through the remaining stages of the bill, with overwhelming support from the profession.

Social Care (Self-directed Support)

Stage 3 of this bill took place on 28 November. The Society’s Mental Health and Disability Subcommittee submitted four amendments, tabled by Dr Richard Simpson MSP, seeking to ensure that adequate protection is given to the assisted person from undue influence being exercised by any person selected or appointed to provide assistance or guidance in the provision of support (ss 5 and 15).

Reducing the drink-driving limit

The Criminal Law Committee responded to the Scottish Government’s consultation. The committee fully supports the policy intent of discouraging anyone who is intending to drive from consuming any alcohol. The committee questioned, however, whether the proposals to reduce the limit to 50 microgrammes of alcohol per 100 millilitres of blood from 80mcg/100ml would really have any significant impact, as many convictions relate to individuals who were substantially rather than slightly over the limit.

There are currently no statistics available showing how many drivers have been found in the 50-80mcg range, and the committee considers that it would be difficult to calculate with any degree of certainty the impact and increased benefit of reducing the limit. It also noted cross-border considerations, as the limit would remain at 80mcg/100ml in England & Wales.

Adults with incapacity

The Society’s Mental Health and Disability Subcommittee responded to the Scottish Law Commission discussion paper no 156, which considers the right to liberty of adults with incapacity in residential facilities. The subcommittee commented that the proposed reforms would have an impact on the number of safeguarders appointed, that legal aid would have to be available for all proceedings to authorise deprivation of liberty, and that there would require to be adequate transitional provisions which should preserve previously conferred powers that had been understood to include power to deprive an adult of liberty, subject to appropriate provisions for supervision, review and appeal. It also takes the view that the present lack of clarity on deprivation of liberty in Scots incapacity law is unsatisfactory, and needs greater clarity than is currently available in England.

Scotland Act 1998

The Constitutional Law Subcommittee responded to the Referendum Bill Committee’s call for evidence on the draft s 30 order. The subcommittee was of the view that the draft order would provide the Scottish Parliament the clear and legal competence to conduct a legal and decisive referendum.

Partnership prosecutions

The Society held a meeting with the Scottish Law Commission to discuss current work projects and in particular the Partnerships (Prosecution) (Scotland) Bill. The bill aims to solve the issue whereby it has not previously been possible to prosecute a partnership that has been dissolved or changed its membership. The Society notes that the bill only relates to criminal prosecution. It makes no mention of the reforming of the law on Scottish unincorporated associations and the proposals to attribute separate legal personalities to qualifying unincorporated associations, as was jointly considered and proposed under the Scotland Office consultation which dealt with both unincorporated associations and partnerships. The Society hopes that the UK Government will bring forward legislation in the near future that will deal with unincorporated associations.

Full details of the above and further information on the current work of the Law Reform Department can be found at www.lawscot.org.uk/forthepublic/law-reform-consultations. The team can be contacted on any of the matters above through louisedocherty@lawscot.org.uk, or follow us on Twitter: @lawscot
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