Recent work of the Law Reform Department, including Criminal Justice Bill; patent court; cameras in court; Housing Bill; bankruptcy and debt advice; defective buildings; community empowerment

Corroboration

The Law Society has been closely following developments in relation to the Criminal Justice (Scotland) Bill and proposals to abolish the requirement for corroboration. The concession by the Cabinet Secretary for Justice on 14 January, to carry out a review which will include looking at whether additional safeguards are required, is certainly welcome, but the Society does not think leaving s 57 on the face of the bill with a subsequent review of additional safeguards is the best way to proceed.

If the Scottish Government remains intent on abolishing the requirement, it should take place after a full review. This would allow for the interconnections of the rule and all other aspects of the criminal justice system to be properly explored. The Society’s firm view is that the appropriate course would be to remove the provision from the bill, create a statutory panel which would conduct the review, and then introduce a short bill to give effect to its recommendations. The Society would strongly support and participate in such an exercise.

Scottish patent court

Pete Wishart MP tabled a Law Society of Scotland amendment to the Intellectual Property Bill, to try to ensure Scottish inventors and businesses can continue to enforce or defend their IP rights in a Scottish court. The Society is concerned that failure to maintain a dedicated patent court in Scotland would risk damaging Scottish businesses which rely on patents to protect valuable technologies and innovation. The bill provides for (up to four) possible local divisions of the new Unitary Patent Court, but none are currently planned for Scotland. The Society wants the right to litigate patent rights in the Court of Session to remain. It therefore proposes that the legislation is amended to ensure that the three separate UK legal jurisdictions are each granted a patent court under the new system.

Cameras in courts

The Society responded to the consultation issued by the Judicial Office for Scotland on proposals to introduce cameras in Scottish courtrooms. The Society supports the filming of legal debates in civil first instance, civil appeals and criminal appeals, for the purpose of documentary programmes, news broadcasts or live transmissions. It is concerned, however, about the filming of criminal proceedings at first instance for documentary purposes; it considers there could be a risk to the administration of justice in criminal proceedings, which may be the subject of appeal or further trial or a retrial.

Housing (Scotland) Bill

Michael Clancy, director of law reform at the Society, gave oral evidence to the Scottish Parliament on the Housing (Scotland) Bill. He urged MSPs to rethink proposals to regulate letting agents. As currently drafted, the proposals will create an unnecessary dual regulatory regime for solicitors who undertake letting agency work. The bill proposes to require ministers to establish a register of letting agents, and empowers them to issue a code of practice and to remove a letting agent from the register if satisfied that the person is no longer fit and proper to work as such. The Society considers it unnecessary to include solicitors in this new regime, as they are already subject to stringent rules of admission and practice and detailed rules covering professional ethics and conduct.

Bankruptcy and debt advice

The Society submitted stage 2 amendments to the Bankruptcy and Debt Advice (Scotland) Bill, namely to remove reference to “interim recall” in the bill and to reduce the proposed debtor contribution order period from 48 to 36 months. The Society also submitted an amendment to ensure automatic discharge is retained in Scottish bankruptcy legislation, as it is concerned that some debtors could otherwise be sequestrated in perpetuity. These amendments were discussed at stage 2. The Society will continue to engage with the Scottish Government and MSPs throughout the passage of this bill.

Defective and Dangerous Buildings

The Society submitted written evidence on the Defective and Dangerous Buildings (Recovery of Expenses) (Scotland) Bill, welcoming the imposition of charging orders on defective properties, but seeking clarification on whether payments by owners can prescribe.

Community Empowerment (Scotland) Bill

The Society welcomed this initiative, but advised caution in legislating new measures of control for local government, where there are already a wide range of controls and powers available where councils are so minded and the justification is there. Placing new measures on the statute book in times of serious cutbacks and contraction, in which councils will struggle to prioritise, could have the unintended consequence of detracting from the credibility of the initiative.


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-and-bills

The team can be contacted via juliabrown@lawscot.org.uk, or follow us on Twitter: @lawscot

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