Recent work of the Law Reform Department, including on the EU 2014 criminal opt-out, water resources, pensions, no-fault compensation, partnerships, land and buildings transaction tax

UK’s 2014 opt-out decision

The House of Lords EU Committee launched an inquiry into the United Kingdom’s decision to opt out of over 130 EU criminal justice measures, including the European arrest warrant, in 2014, and its potential implications for the United Kingdom. In its written evidence, the Society reiterated its position that a wholesale opt-out could have very serious consequences in fighting cross border crime from both a practical and cost perspective, and that such a decision should not be taken before a thorough consideration of the implications. Even if the UK is able to “opt back in” to some measures, this is likely to lead to confusion, complexity and cost.

Water Resources (Scotland) Bill

The Environment Law Subcommittee provided a stage 1 briefing to MSPs. While it generally welcomes the policy objectives of the bill, it does have concerns that it does not take into account the environmental impact of safeguarding Scotland’s water resources. The committee believes that a proper balance between development and environmental impact is required. As an example, there may be circumstances where water as a resource should not be “used”, at all.

The bill also makes provisions for bringing large scale water abstraction under ministerial control.

Pensions: maintaining contributions

The Pensions Law Subcommittee responded to this consultation by the Pensions Regulator in December. The consultation relates to codes of practice which aim to improve transparency and ensure that everyone involved in the flow of contributions has a clear understanding of their accountabilities. The subcommittee commented that the revised codes and accompanying guidance may present a significant burden for trustees and providers, requiring some very detailed checks, e.g. analysing the constituent elements of members’ salaries. It suggests that trustees and providers should be entitled to assume for these purposes that members’ pensionable salaries or earnings have been correctly determined by the employer.

Clinical treatment: no-fault compensation

The Civil Justice Committee responded to the Scottish Government consultation, Recommendations for No-Fault Compensation in Scotland for Injuries Resulting from Clinical Treatment, which looked at the potential benefits for patients in Scotland of a no-fault compensation scheme. Having also considered the responses by the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers, it believes that a no-fault scheme is not the correct choice at this time, and that victims of clinical negligence should not be treated any differently from those injured by other types of negligence.

Partnership prosecutions

The Partnerships (Prosecution) (Scotland) Bill received its second reading in the House of Lords on 4 December. The Society has raised concerns that a new partner joining after the alleged offence would be jointly and severally liable to the payment of any fine imposed on the partnership following a finding of guilt.


Members of the Tax Law Subcommittee have been invited to give oral evidence on the Land and Buildings Transaction Tax (Scotland) Bill to the Finance Committee of the Scottish Parliament on 23 January. Details will be reported in next month’s Journal.

Full details of the above, and further information on the current work of the Law Reform Department, can be found at, and the team can be contacted on any of the matters above through, or follow us on Twitter: @lawscot
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