Recent work of the Law Reform department, including smoking and tobacco control; investigatory powers; Lobbying Bill; organ transplants; impact of EU referendum; imprisonment; prison sentences

Smoking prohibition in vehicles

The Health & Medical Law Committee submitted amendments at stage 3 of the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill. It called for the legislation to be extended to cover e-cigarettes, until more research is undertaken as to their long-term effects; for the driver to be held vicariously liable for other smokers in the car; and for a statutory defence if an accused reasonably believed their passengers were over the age of 18 or took reasonable action to prevent others from smoking. These amendments were not taken forward by any MSPs; however, Jackson Carlaw MSP moved a further amendment calling for a review of the legislation after five years. This was defeated during the debate. 

Draft Investigatory Powers Bill

Tim Musson, convener of the Privacy Law Committee, gave oral evidence to Westminster’s Joint Committee on the Draft Investigatory Powers Bill on 14 December, and the Society submitted written evidence on 22 December. It has serious concerns in relation to legal professional privilege, which it argues should be expressly protected in the legislation: the proposed code of practice is not satisfactory. The Society calls on the UK Government to clarify its reasoning as to why there is no such protection. 

Lobbying (Scotland) Bill

The Society’s stage 1 briefing to MSPs reiterated its position that if the policy objectives of transparency and openness are to be achieved, the scope of the bill needs to be widened to include more than oral face-to-face communications. It was pleased to see that the Health & Sport Committee has also suggested that the Scottish Government review the position. The English legislation of 2014 includes any “oral or written communications”. This will include emails and telephone calls.

Organ transplantation

Health & Medical Law convener Alison Britton gave oral evidence to the Health & Sport Committee on the Organ Transplantation (Authorisation of Removal of Organs etc) (Scotland) Bill. Without commenting on the policy merits of changing to a “soft opt-out” organ donation system, the Society recognises the pattern of evidence which suggests that countries with such a system have higher rates of organ donation. While supporting the proposal that a person be able to appoint a proxy to make the decision on organ donation, the Society highlighted that the bill does not require that the proxy either consents to or needs to be aware of their appointment, suggesting that for effective decision making, the proxy must have a clear idea of what the individual would have wished. 

Impact of EU referendum

Michael Clancy, director of law reform, gave evidence to the Scottish Parliament’s European & External Relations Committee on 17 December about the impact of the EU referendum on Scotland. The Society is remaining neutral on the question whether the UK should leave the EU, but is examining the potential implications from the legal perspective.

Criminal Law Committee

The committee responded to two consultations in December. The proposed Prostitution Law Reform (Scotland) Bill would decriminalise activities associated with the buying and selling of sexual services and strengthen the laws against coercion, advocating the New Zealand model of prioritising the safety, rights and health of sellers of sexual services. Without commenting on the policy aims of the bill, the committee referred to s 46 of the Civic Government (Scotland) Act 1982, and believes that reform in this area of law is required.

Responding to the Scottish Government consultation on strengthening the presumption against short periods of imprisonment, the committee did not believe that a sentence of less than 12 months afforded any possibility of meaningful work designed to reduce reoffending or to learn new skills. A sentence of such a period could only be for retribution and confinement. Were the presumption against custody to be fixed at six months, it might ensure that the worst and most recurrent summary offenders would still be aware that they faced a period of imprisonment, while rendering it less likely that those who are merely a public nuisance face repeated incarceration. 

The Society also submitted evidence on the Burial and Cremation (Scotland) Bill and the Bankruptcy (Scotland) Bill, and a stage 1 briefing on the Land Reform (Scotland) Bill; and the Charity Law Subcommittee responded to an OSCR consultation on its draft Charity Trustee Guidance.

Further information on all of the above, or any law reform work, is available from, or 
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