Questions to be addressed at the general election are looming large for the Society, while it continues to raise concerns on behalf of profession and public over legislation already in progress

The first eight months of my term as President have passed by in a flurry of fascinating encounters with colleagues, meetings to conduct day-to-day Society business on behalf of the profession and the clients they serve, formal engagements, and late night shifts at the office to meet the demands of the day job. Two thirds of the way through, there is much still to do. Thankfully, work at the Society continues apace.

In the past month alone, we have responded to a number of important legislative developments, not least the latest landmark in Scotland’s constitutional journey, the draft clauses for devolution of further powers to the Scottish Parliament following the work of the Smith Commission. The proposals outline a range of significant powers in important areas of law and policy, though the clauses must be subject to scrutiny before the eventual bill is introduced. The Society will now consider the command paper in detail, suggesting improvements where appropriate.

Along with protecting human rights and the ECHR, providing clarity on membership of the European Union and retaining legal services at the heart of a growing economy, the need for a stable devolution settlement is among the key issues that must be addressed in the forthcoming general election. The Society is producing a document outlining these priority areas – we urge the political parties to set out their policy responses in their manifestos.

Legislative questions

Much attention has focused on the Assisted Suicide (Scotland) Bill under consideration at Holyrood, and the Counter-Terrorism and Security Bill passing through Westminster. On the former, the Society raised a number of concerns about the lack of clarity in legislation that, by its nature, must be unambiguous. The provision to allow a solicitor to act as a proxy to sign the request for assisted suicide for a person who is blind, unable to read or unable to sign themselves also raises significant moral and ethical issues. In our view, a medical practitioner would be better placed to assess whether a person has the capacity to understand the effect of a proxy signature in relation to assisted suicide.

Likewise, we have made known our serious concerns about the temporary exclusion orders in the proposed counter-terrorism measures, which would prevent someone with the right of abode from returning to the UK. This would provide the Home Secretary with an unprecedented power in UK legislation and could perhaps be challenged under the ECHR. The Society supports attempts to tackle terrorist activity, but some provisions in this bill – which is being fast-tracked through Parliament – would have a significant impact on the fundamental rights of citizens and must be properly scrutinised and debated. We fear this is not the case.

In other legislative matters, the Scottish Government is preparing to implement a new scheme for the mandatory regulation and registration of letting agents, a move that might affect a number of solicitors. The Society is keen to gather feedback from solicitors who may carry out letting agency work before the regulatory model is finalised.

New approaches

Changes to our courts were also announced last month, with the Lord President setting out a timetable for reforms intended to transform the civil courts through the use of technology, improved administration and greater judicial specialisation, and make them more accessible for Scottish businesses and members of the public. Perhaps understandably, much of the response focused on the use of cameras and Twitter in courts.

The effective use of digital technology is essential in a modern court system, helping to demystify the law, allowing the public to gain insight into the way our courts work and improving access to justice. Given the closure of courts around the country, it is particularly important to embrace new technology if we are to maintain a modern, effective system. The Society will continue to push for membership of the Justice Board for the Making Justice Work programme, to ensure we are at the heart of the decision-making process. Meanwhile, we will monitor the reforms and highlight any resource issues that arise.

At the end of last month, our consultation paper aimed at encouraging new ways of thinking about the legal aid system in Scotland closed, with 45 responses from individuals and organisations. Inevitably, change divides opinion, but this feedback is essential if well considered, workable proposals are to be developed. I would like to thank all those who took the time to share their views. We will consider the responses in detail and publish a further report later in the year. 

The Author
Alistair Morris is President of the Law Society of Scotland ~
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