Public policy highlights: August 2022

The Society’s policy committees analyse and respond to proposed changes in the law. Key areas from the last few weeks are highlighted below. For more information see www.lawscot.org.uk/research-and-policy/ 

SLC law reform programme

The Society’s Public Policy subcommittees responded to the Scottish Law Commission’s Eleventh Programme of Law Reform: Consultation. As part of its work to influence law and policy and help to shape good law, the Society submitted eight suggested areas for reform, including consolidation of environmental law, breach of contract claims in the employment tribunal, and digital assets. The Commission will consider the submissions and submit a draft of the Eleventh Programme to Scottish ministers for approval, and lay it before the Scottish Parliament.

Mental health law review

The Criminal Law Committee and Mental Health & Disability Committee responded to the Scottish Mental Health Law Review’s Additional Proposals consultation, which sought views on proposals relating to independent advocacy, advance statements and the forensic mental health system. The response reiterated calls for wideranging reform, and to prioritise those areas where reform is most urgently needed, including regulating deprivations of liberty. It supported proposals to strengthen the role of independent advocacy, and for evaluation and quality assurance of independent advocacy organisations, training and career development, and appropriate funding. Regarding the forensic mental health system, the response reiterated the Society’s previous response, that there should be no differentiation on the basis of “mental disorder” or other similar terminology, and called for a uniform regime which is non-discriminatory and principles-based.

It was suggested that the proposals relating to advance statements were too narrowly focused on healthcare matters: the Review’s final recommendations should address the broadest purposes of advance choices, consistent with the scope and terminology proposed in the Society’s recent paper on Advance Choices.

Procurement Bill

A briefing on the Procurement Bill was issued ahead of the House of Lords committee stage, which began on 4 July. The bill reforms the UK’s public procurement regime following the exit from the European Union. It will revoke existing statutory instruments which derive from EU directives. 

The briefing highlighted that in Scotland contracting authorities must adhere to the Scottish specific procurement regulations and the Procurement Reform (Scotland) Act 2014 when tendering for public contracts. The bill is important for Scottish suppliers who may tender for public contracts across the UK, including Scottish law firms tendering for legal services work from UK central and local government: for example, UK contracting authorities with reserved functions are subject to UK-wide legislation such as the Defence and Security Public Contracts Regulations 2011.  

As well as commenting on a few specific provisions, the briefing identified that it is important that the bill does not lead to confusion for parties, given that different rules will apply in the UK market.

Amendments were suggested, including to provide that a contracting authority carrying out a procurement must act with integrity; and regarding award criteria, that a contracting authority must be satisfied that they take account of the environmental impact of the award. It was also proposed that the provision that a Minister of the Crown be able to make regulations regarding devolved procurement matters be removed. 

Seafarers’ Wages Bill

Following the consultation on conditions for harbour access and seafarers’ pay rates (Journal, July 2022, 37), the Seafarers’ Wages Bill was introduced to Parliament in July. The Society issued a briefing on the bill ahead of second reading in the House of Lords. The bill is high level, with a number of clauses where further regulations and/or guidance are contemplated. It is not therefore possible to assess its full impacts at this stage. 

As well as commenting on specific provisions, the briefing highlighted that for these measures to be of greatest benefit effective enforcement will be needed, with sufficient resourcing. Further, there will likely require to be processes set up between the Secretary of State via the Maritime & Coastguard Agency and harbour authorities, to manage the requirements, powers and duties under the bill in practical terms.

Low income trusts

The Tax Law and Trust & Succession Law Committees responded to HMRC’s consultation on Income Tax: Low income trusts and estates. The response strongly supported the proposals to legislate for a de minimis system to formalise and extend a concession that removes trusts and estates from income tax where the only source of income is savings interest and the tax liability is below £100.

These measures are likely to bring a welcome reduction in administrative burden for trusts and estates. It was noted that introducing a formal de minimis system rather than an allowance may be most appropriate in order to capture only the low income trusts which are the intended target of the measures. 

Clarification was sought as to how cases would be treated where there are capital disposals to be reported, and how the proposed de minimis system will interact with the complex estates rules. In relation to discretionary trust tax pool adjustments, the impact of the Scottish differential income tax rate was noted. 

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