Recent work of the Law Reform Department, including underground drilling access; land and business transaction tax; gender quotas on boards; Data Retention and Investigatory Powers Bill

Underground Drilling Access

This UK Government consultation makes proposals to reform the procedure for gaining underground access to oil or gas deposits and geothermal energy, with a compensation framework for landowners. While not commenting on the policy issue of whether fracking should be undertaken in the UK, the Society highlighted the fact that the correct framework must be put in place to support industry and local communities as well as safeguarding the environment and public safety. The Society supports the proposal to make a community payment rather than an individual landowner payment, but is currently unclear how payments are going to be made and thereafter distributed.

The Society also suggested consideration be given to whether a single lump payment is always appropriate, rather than tiered payments linked to different levels of work, from exploration through to production, perhaps with a backstop cap.

LBTT – subordinate legislation

The Tax Law Committee responded to the Scottish Government consultation on subordinate legislation for land and buildings transaction tax. The regulations propose making businesses operating under a licence to occupy subject to LBTT, where they are not currently liable to SDLT. The committee has asked for further clarification of some of the wording used, such as “retail shop”, without which professional advisers will be unable to advise clients on the implications of the tax on their businesses.

Women on Board

The Equality Committee responded to the Scottish Government consultation on gender quotas for public boards. It welcomed the proposals, which seek to promote and ensure equality balance, but highlighted that it is important that all appointments are made on merit and, to that end, a transparent application process be introduced to ensure confidence from both the public and other board members. Further, any percentage level for gender quotas should be truly reflective of the gender balance in Scotland, and should be regularly reviewed to ensure it continues to be so.

Data Retention and Investigatory Powers Bill (DRIP)

The Privacy Law Subcommittee wrote to Scottish MPs and peers on the bill that was introduced and passed under emergency procedure. Aimed at companies that provide telephone and internet connections, the bill outlines the legal obligations they will have to retain data on their customers, such as calls made, to whom and at what time – though not the content of such communications. The committee raised a number of concerns, including the speed at which it was passed and that it was not subjected to the usual parliamentary scrutiny, and that there appeared to be no consultation with Scottish Government or stakeholders. It also questioned the need for emergency procedure, considering the CJEU judgment that prompted the legislation was given in April this year.

Full details of the above, and further information on the current work of the law reform department, can be found at
The team can be contacted on any of the matters above through or follow us on twitter: @lawscot
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