Committee Archive 2014

To read the full written responses submitted by the Society to the Bills and consultations mentioned below, please refer to the Law reform consultations and Bills pages.

The law reform team can be contacted on any of the matters below at or follow us on twitter @lawscot.

December 2014

Post Corroboration Safeguards Review

The Society submitted its response to Lord Bonomy’s consultation at the end of November.  In its response the Society maintains that a full review of the law of corroboration would have been a better route to examine how the requirement for corroboration interconnects with all other aspects of the criminal justice system.  While commending the Review Group on its work, the law of corroboration is a cornerstone of the Scottish criminal justice system and replacing it without full consideration of the knock on effects could have serious consequences.  The Society also warned against borrowing safeguards from other jurisdictions without proper regard for how the Scottish system has developed and currently operates.

The full response can be found on our website

Community Empowerment (Scotland) Bill – Crofting Community and Right to Buy

On 26 November, Duncan Burd, member of our rural affairs sub-committee gave evidence to the Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee on part four of the Community Empowerment (S) Bill – the community right to buy land.  The main thrust of the Society’s evidence centres around the process that crofting communities have to go through to buy and control the land where they live and work.  The Society argues that the existing process is complicated and time consuming, and that the proposals within the Bill still do not go far enough to alleviate these concerns.

The Society’s full evidence and a link to the oral evidence session can be found on our website


Mental Health (Scotland) Bill

Jan Todd, member of the Society’s mental health committee, gave oral evidence to the Scottish Parliament’s Health and Sport Committee on 18 November.  The bill amends the Mental Health (Care and Treatment) (Scotland) Act 2003.  The Society is concerned that the human rights of mental health patients could be at risk under the proposed new legislation, and that many of the proposals are based on the recommendations of the McManus Committee who conducted a limited review of the 2003 Act in 2009, and that they no longer reflect current needs or practice.  There are particular concerns around patients detained in low security hospitals not being able to appeal against conditions of excessive security; the bill only extends those rights already held by those in high level security hospitals to those in a medium security facility.  It is the Society’s view that this is restrictive and discriminatory and has implications under human rights law.  

Full details of the bill and the Society’s response, and a link to the oral evidence session is on our website.

Legal Writings (Execution in Counterpart) (Scotland) Bill – Stage 1 debate

We wrote to all MSPs ahead of the stage 1 debate of the bill on 25 November. The Society is very supportive of the policy intent of the bill and agrees that the current existing process for signing contracts under Scots law is in need of improvement and updating to bring Scots contract law in line with the practices of other legal jurisdictions.  As we have said in both written and oral evidence, parties to a contract often switch to English law or to that of other jurisdictions, as an alternative to Scots law, often at the eleventh hour.  The Society also welcomed the Delegated Powers and Law Reform Committee’s support for the use of electronic signatures and the Committee’s recognition that such signatures can provide a secure means of executing documents digitally.   During the debate Jenny Marra MSP referred favourably to the Society’s  Smartcard scheme, which will provide all practising solicitors in Scotland with an electronic digital signature. 

The documentation pertaining to the bill and a link to the stage debate can be found on our website


Air Weapons and Licensing (Scotland) Bill

Jack Cummins, member of the Society’s Licensing Law Sub- Committee was part of a panel which provided oral evidence to the Scottish Parliament’s Local Government and Regeneration Committee on Wednesday 19th November. 

Jack expressed the Society’s concern that the bill had failed to address a number of the practical measures adversely affecting the trade, Licensing Boards, clerks and practitioners alike such as the lack of a site only application which was previously available under the Licensing(Scotland) Act 1976 and the current difficulties in transferring or surrendering a licence. 

He also expressed some concern around the double licensing system envisaged for Sexual Entertainment Venues in that different criteria will be applied by different authorities Licensing Boards and Councils) in respect of the same premises.

He stated that, on the basis that a separate licence should have to be obtained ,it should also be the Licensing Board who regulate this process as opposed to the Council as the Board are better placed to consider the suitability of premises which are already licensed for the sale of alcohol. 

The Society’s written response can be found on our website.

November 2014

The Smith Commission

The Society has made its submission to the Smith Commission on further devolved powers for the Scottish Parliament.  The Society hosted a very successful member engagement event with Lord Smith, which showed that the profession were engaged and focussed on practical suggestions for the further devolution of powers.  Areas covered included the need to consider better checks and balances within the legislative system.  Members also raised the issues of devolution of unincorporated associations such as partnerships as well as employment tribunals.  

In the Society’s final submission there is discussion around the further devolution of the regulation of solicitors who provide legal advice, services and activities relating to consumer credit, insolvency practice, financial services and immigration.  These areas are currently considered to be reserved as the substantive law in these areas is reserved.  The Society is proposing that the provision of advice on these matters should be fully devolved. 

The full submission can be found on our website

Serious Crime Bill

The Society submitted a number of amendments at Report stage on the Serious Crime Bill. 

The amendments reflect the Society’s concerns that Serious Crime Prevention Orders (SCPOs) may be applied for by the police or prosecution, and imposed by the court, without the person concerned having been convicted of any serious offence in any jurisdiction, purely on a speculative basis, these being ‘stand-alone’ orders. Given the restrictive nature of the orders, the Society believes that it would be unreasonable to impose such orders where an alleged offence remained unproven. If no prosecution has been brought against the person, then they will not have been given the opportunity to respond to any allegations made.

All the Society’s amendments were tabled by Lord Mackay of Drumadoon and, following debate, were withdrawn.  Full detail of the amendments submitted are on our website

Recall of MPs Bill

The Society submitted a second reading briefing MPS on the Recall of MPs Bill.  The Society believes that amending the existing Representation of the People Act 1981 to include the provision for disqualifying MPs who have received a prison sentence of less than one year would achieve the same aims as proposed by the Bill and would be a more constitutionally appropriate way of removing an MP from office.    The Society also had concerns about the requirement for 10% of eligible constituents needing to sign the recall petition for it to be considered successful, as it would in theory be easier to raise a successful petition in smaller, more rural constituency as fewer people would have to sign the petition in order to reach the 10% threshold.

The full briefing can be found on the Society’s website

Targeted Regulation of Scottish Charities

The Charity Law committee responded to the Office of the Scottish Charity Regulator (OSCR) consultation on proposed changes to the questions being asked in their annual return which all charities are obliged to complete. 

Charities will have to answer a number of sections depending on their income level, with the lowest income threshold being set at £25,000. The Society is concerned that these new questions and how they are structured within the annual return will place an undue burden on charities, particularly smaller ones.  It is of the view that the proposed threshold of £25,000 is too low if the number of questions being proposed in the annual return is to remain as is, and that the threshold should broadly reflect the level of income a typical charity would be likely to have with at least one full time paid member of staff.  

The proposals also consider the introduction of a Serious Incident Reporting obligation on charities, meaning that charities would be obliged to report every instance of fraud or theft, amongst other matters, to the regulator, no matter how small.  The Society would like to see further consideration given to what constitutes a serious incident and whether or not reporting such incidents to OSCR is always appropriate. 

The full consultation response is on our website

Assisted Suicide (S) Bill

The Society gave evidence to the Justice Committee on 28 October.  Alison Britton, convener of the Society’s Health and Medical law committee reiterated the Society’s call for greater clarity and definition if the proposed legislation is to achieve its stated aims.  She said it was imperative for there to be clear definitions of what constitutes assisted suicide and what is meant by the term ‘licensed facilitator’. 

Coral Riddell, head of the Society’s Professional Practice team, spoke on the Society’s concerns around a solicitor being able to act as a proxy to sign the request for assisted suicide for a person who is unable to do so.  Within the context of assisted suicide, and the significant and irreversible nature of the act of ending a life, the Society is of the view that a medical practitioner would be better placed than a solicitor to assess whether or not a person has the necessary capacity to understand the effect of a proxy signature in such a situation. 

The Society was also questioned on the proposed 14 day time limit between the second assisted suicide request and when the act is committed and the consideration to the age limit at which this legislation could apply. 

The full written evidence and the link to the oral evidence session can be found here

October 2014

Proposed Organ and Tissue Donation (Scotland) Bill

The health and medical law committee responded to Ann McTaggart MSP’s proposed bill on organ and tissue donation.  The proposed measures would reverse the current law where a person has to expressly opt in to the system, to one where a person would be deemed to have opted in to organ donation unless they had expressly opted out.  The Society’s response centres around the need for clarity and a high profile publicity campaign and warned that this new system could have the potential to lead to conflict between clinicians and family members, who may be opposed to organ donation or severely distressed.  The committee agrees with the proposal that automatic opt in should take effect at 16 years of age, and that those between the ages of 12 and 16 will retain their right to authorise transplantation under the Human Tissue Act 2006. 

The full response will be available here on 02 October. 

Air Weapons and Licensing (Scotland) Bill

The licensing law committee submitted written evidence at stage 1 of the parliamentary process at the end of September.  The bill is far reaching and covers a number of areas, including the licensing of alcohol, scrap metal dealers and air weapons.  The committee suggests that as it stands the proposals for air weapon licensing will not have the desired effect of the cutting down air weapon crime, as the licence will cover the person, not the weapon, and will not provide for the individual listing of each single item.  The committee also comments on the missed opportunity the bill had to address some long standing issues surrounding the transfer of premises licenses, particularly when a tenant disappears leaving the premises closed, and the introduction of a time limit for alcohol licence applications, which it welcomes, however states that the proposed 9 month time limit is too long. 

The full response can be found on our website

Legal Writings (Counterparts and Delivery) (Scotland) Bill

On 30 September the Society gave oral evidence to the Scottish Parliament’s Delegated Powers and Law Reform Committee.  The Society is supportive of the Bill, which will modernise the law relating to legal documents, speeding up transactions and allowing traditional documents to be delivered by electronic means.  It will enable a more efficient process for execution where parties are based in different locations.  We believe that enabling execution in counterpart will bring Scots Law into line with many of the other international jurisdictions, including England and New York, both of which are often considered to be two of the world’s key legal centres, and will precipitate an increase in the use of Scots Law to govern transactions.

The Society’s full response to the bill can be found on our website

Scottish Independence Referendum – impact of the ‘No’ vote

The Commission chaired by Lord Smith of Kelvin will soon begin taking evidence on what additional powers should be devolved to the Scottish Parliament.  The Society’s law reform committees are currently considering what additional powers they would wish the Scottish Parliament to have, and will report to the Commission by the end of October.

Administrative Justice Committee

The newly established Administrative Justice Sub-Committee will monitor developments in administrative justice in Scotland. In particular, it will review and comment on draft legislation, on practice and on policy initiatives across devolved and reserved areas that impact on administrative justice in Scotland.

The committee is convened by the Society’s past president Richard Henderson and Richard Whitecross of Napier University has been appointed sub-convenor.  The other committee members are Anne Hastie, Caroline Gordon, Chris Gill, David Crossan, Michael Adler, Paul Smith and Paul Smith (Yes there are two of them!)

September 2014

Standardised packaging of tobacco products: draft regulations

The IP and health and Medical Law committees responded to the UK Government consultation on the introduction of regulations to standardise the packaging of tobacco products.  In its response, the Health and medical law committee highlighted the Society’s support for any initiative which seeks to promote public health and reduce illness and disease, as well as the limited experience available from other countries and the absence of any long term studies, to ascertain whether or not plain packaging would have the desired effect. 

The IP committee highlighted the key intellectual property questions which the introduction of standardised packaging might raise, including the fact that the proposed legislation would inhibit tobacco companies from being able to distinguish their products from those of other competitors.  As this is the key function of a trade mark, the question arises as to whether standardised packaging deprives the tobacco seller's ability to use their trade marks, and therefore their main form of branding.

Full response can be found on our website

Mental Health (Scotland) Bill

The Mental health and Disability Committee responded to the Scottish Government’s call for evidence on the above Bill.  The committee highlighted the length of time it has taken to produce the Bill on the back of recommendations made in 2009 and whether or not the recommendations still reflect current needs or practice.  It had concerns around the human rights issues the Bill raises, in particular that the Bill does not provide patients detained in a low security hospital the right to appeal against conditions of excessive security, it only extends those rights already held by those in high level security hospitals to those in a medium security facility.   The committee felt that this was restrictive and discriminatory and has implications under human rights law, in particular a person’s right to liberty, a private and family life, freedom from inhuman or degrading treatment and non-discrimination.  The committee also said that the extension of the short term detention period while awaiting the outcome of an application for a compulsory treatment order from 5 to 10 working days was no lobhger necessary and a further encroachment on the patient’s rights. 

Full response can be found on our website 

Consultation on wildlife Investigative Powers for SSPCA Inspectors

The Rural Affairs committee responded to the Scottish Government consultation on increasing powers for Scottish Society for the Prevention of Cruelty to Animals officers.  The Government is proposing to increase the powers of SSPCA officers to allow them adequately investigate wildlife crime rather than Police Scotland.  The Committee is of the view that the powers that are being proposed are more suitable for police officers and it would prefer for the Scottish Government to increase the resources and personnel of Police Scotland in order that they can investigate wildlife crime.  However, in the absence of increased police resources, and given the public interest in combatting wildlife crime, the Committee is satisfied that it is appropriate for SSPCA officers to be granted the proposed powers which include the ability to search vehicles suspected of carrying illegal carcasses, protected live animals and birds, and illegal traps or poisons.  The committee considers it essential appropriate training is provided and that SSPCA officers should be accompanied by a witness when exercising their powers under the new legislation.  It also believes the powers should be reviewed after a period of 2-5 years to ensure powers are not being abused. 

Full response can be found on our website 

Pension Schemes Bill

The Pensions Law Committee provided a second reading brief to Scottish MPs on the above Bill.  The Bill takes forward the UK Government’s proposals of risk sharing in private pension arrangements, by setting out a definition of shared risk and brings forward further reforms to allow savers flexibility in how they access and apply their defined benefit pension pots, as laid out by the UK Government in its most recent budget.  The Society has two main concerns with the Bill, relation to indexation requirements and the introduction of the new terms “third party promises”, and focuses its briefing on seeking clarification on these points.

The full response can be found on our website

August 2014

Moving Forward with LBTT - Subordinate legislation

The Tax Law Committee responded to the Scottish Government consultation proposing subordinate legislation for Land and Buildings Transaction Tax.  The regulations propose making businesses operating under a licence to occupy subject to LBTT, where they were not previously liable to Stamp Duty Land Tax (SDLT).  The committee felt that some of the meaning of some of the wording used in the regulations, such as 'retail shop' was unclear, and have asked for further clarification from the Government on the matter.  Without further clarification, professional advisors will be unable to        advise clients on the implications of the tax on their businesses.

The full response can be found on our website

Women on Board: Quality through Diversity, Scottish Government Consultation on the Introduction of Gender Quotas on Public Boards

The Society responded to the Scottish Government consultation which is considering introducing gender quotas on public boards.  In its response the Society’s Equality committee 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 not purely to pay ‘lip service’ to quotas and to that end a transparent application process be introduced to ensure confidence from both the public and other members of the board.  The Committee also suggested that any percentage level for gender diversity quotas should be truly reflective of the gender balance in Scotland and that that percentage level should be regularly reviewed to ensure it continues to fairly represent the gender split. 

The full response can be found here

Data Retention and Investigatory Powers Bill (DRIP)

The Society’s Privacy Law Committee wrote to Scottish MPs and Peers on the Bill that was introduced and passed under emergency legislation procedure in just four days.  The Bill is aimed at companies that provide telephone and internet connections, and outlines the legal obligations they will have to retain data on their customers, such as calls made, to whom and at what time. It does not include 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 level of scrutiny that each parliamentary stage usually requires, and that there appeared to be no consultation with Scottish Government or Scottish stakeholders on the implications of DRIP for Scotland.  It also questioned the need for the emergency legislative procedure, considering the CJEU judgment that prompted the legislation was passed in April of this year. 

The full letter can be read here 

Underground Drilling Access - a consultation

This UK Government consultation makes proposals to reform the procedure for gaining underground access to oil or gas deposits and geothermal energy, and provides a compensation framework for landowners. While not commenting on the policy issue of whether or not fracking should be undertaken in the UK, in its response the Society concentrated its comments on highlighting 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 it is currently unclear how payments are going to be made and thereafter distributed to the community.

The Society also suggested consideration be given to whether or not a single lump payment is always the appropriate option or whether compensation payments should be tiered and linked to different levels of work, such as exploration or testing, development and, finally, production.  If tiered, then further consideration would have to be given to whether a backstop cap would be introduced so as not to hinder industry with an onerous fee scale.

The full response can be found on the Society's website

July 2014

Deregulation Bill

The Society continues to press the UK Parliament with its concerns over the partial authorisation of insolvency practitioners. In its letter to Scottish peers, the Society has highlighted that in Scotland significant parts of corporate insolvency are linked to bankruptcy legislation, and are not separate as in England and Wales. The proposed regime under the Bill will not allow for partial authorisation as an insolvency practitioner because of the linkage between company insolvency and bankruptcy law. The Society is also concerned over the  proposed repeal of the Senior President of Tribunals' duty to report on standard, which removes aspects of oversight of tribunals.

Full details here

Consumer Rights Bill

The Consumer Rights Bill reaches its second reading in the House of Lords in July. The Society welcomes and agrees with the policy intentions behind the Bill which are to strengthen the rights of UK consumers, however highlights its concerns around the inclusion of the term 'consideration' which is not a recognised legal term in Scotland. The Society also questions why the Bill does not provide any right of rejection for digital content, having been considered in a previous consultation, nor makes any reference to continuous payment authorities, sometimes known as 'recurring payments' often used in the payday loan market, and involves the debtor giving the company his or her card details and authorising the lender to take regular payments from his or her account.

Full details here

Infrastructure Bill

The Bill was introduced in June but only two clauses relate to Scotland. Part 4, clause 26, gives the Secretary of State a power to make regulations for a community electricity right. This right will allow residents and groups in a community to buy a stake in a local renewable electricity generation facility that is located onshore or offshore. Part 4, clause 27, permits regulations to be made which confer functions on others in relation to the community electricity right. The principle of community right to buy in respect of renewable energy projects is a matter of government policy, and the Society has restricted its comments to the implementing regulations, the terms of which will need to be consulted on in early course if the government is going to successfully engage both developers and community groups and, which will need to find the correct balance between (a) the political objective of encouraging community involvement in renewable energy projects and (b) encouraging private sector development in renewable energy projects - which is another key government objective.

Full details here

Housing (Scotland) Bill

The Society submitted amendments at stage 3 of the Bill. The Society proposed that there should be provision for the removal of a letting agent from the register on request. A person may wish to be removed from the register for a number of reasons including change of career, retirement or sale of the business. The Society was pleased to see that this amendment was passed. The Society also called for an amendment which would void all contracts for letting agency concluded between a landlord and a letting agent where the letting agent is refused access to or removed from the register. The final amendment it has proposed is to delete s 51 (1) (b), removing the potential for bringing many people into the regulatory net who should not be included such as roofers, painters and decorators, builders, insurance companies, house factors and others.

Full details here

June 2014

Assisted Suicide (Scotland) Bill

In its written evidence to the Health and Sport Committee, the Society raised a number of concerns on the bill, including the lack of a definition of 'assisted suicide'.  The Society suggests that a very clear and unambiguous definition of what it is to 'assist' suicide be laid out on the face of the bill to avoid any difficulties in interpretation.  There is also a lack of definition of the role of a 'licenced facilitator'.  The Society also raised concerns around the age limit specified in the bill, which is stated as 16.  While the Society has not gone as far as suggesting the age limit be raised, it has made the point that under the current provisions of the bill, it would be possible for a 16 year old to request assisted suicide and another 16 year old to act as licenced facilitator.  Other issues raised include the 14 day time period a person has to commit, or attempt to commit, the act of suicide from the date of the second request; the storage and safekeeping of the drugs, and the ability of solicitors to act as proxies.

Read the Society's full written evidence.


Housing (Scotland) Bill

The Society submitted stage 2 amendments to the Bill in May.  The bill proposes to require Scottish Ministers to establish and maintain a register of letting agents and grants them the power to issue a code of practice. Proposals also provide Scottish Ministers with the power to remove a registered letting agent from the register if they are satisfied that the person is no longer a fit and proper person to carry out letting agency work.  The Society is supportive of the proposal to regulate letting agents, however suggested it should not be compulsory for solicitors to be part of the regime, as they are already subject to stringent rules of admission and practice and detailed rules covering professional ethics and conduct.   The Society was successful in tabling amendments to the bill to remove the compulsory inclusion of solicitors to the register, however the amendments were defeated 4-3 at stage 2.

Read the full amendments.


Air Weapons and Licensing (Scotland) Bill

The Society's Licensing Law Committee welcomed the introduction of the bill in May.  The committee broadly agrees with the measures proposed in the bill, but question whether or not it will have the desired effect of properly regulating the use of air weapons in Scotland.  Where the bill proposes a single air weapon certificate should cover all air weapons held by an individual, the committee suggests that such a certificate should hold a list of all the weapons held by that individual otherwise the police will not know how many are in circulation.  The committee also suggest that there should be an incentive scheme to register or pass on unwanted air weapons to the police to remove them from circulation and avoid the potential for a surge in sales of air weapons before the licensing scheme comes into operation, with the result that many of these weapons may end up in the wrong hands.  The committee also support the tighter licensing of scrap metal dealers and the introduction of timescales with regards to alcohol licensing applications which are currently open ended.  The Committee will be considering the bill in full detail and will be submitting written evidence to the Local Government and Regeneration Committee in due course.

Documentation will be available on the Society's website.

Courts Reform (Scotland) Bill

The Society submitted its stage 1 brief in May.  The bill proposes to introduce a £150,000 threshold for cases to be heard in the Court of Session, and the Society's concerns centre around the dramatic increase in the threshold from its current £5000, which is likely to cause a surge in cases and delays in the sheriff courts.  The Society would welcome a rise in the threshold to £50,000, which will ensure that the majority of serious and complex cases will continue to be heard in Scotland's highest court.  The Society also has concerns around the introduction of a three month time period in which to bring a judicial review application which is, in the Society's view, overly restrictive and will adversely affect access to justice.  The Society will be preparing stage 2 amendments to the bill in June.

Read the full documentation on the bill.

Disabled Parking Badges (Scotland) Bill

In its stage 1 brief the Society's Equality Committee reemphasised its general support of the policy intent behind the bill to tackle fraudulent misuse of the blue badge scheme.  Misuse of the blue badge scheme can already be prosecuted under the common law offence of fraud, meaning this new offence duplicates existing law.  The new offence is also one of strict liability meaning someone may find themselves being prosecuted for a genuine error or mistake in using a cancelled blue badge unintentionally.  The Committee also raised some concerns surround the introduction of non-uniformed enforcement officers, citing that this may give rise to confrontational situations, and that the public will have no way of knowing if any identification card shown is genuine.  The Committee will be submitting stage 2 amendments to the Scottish Parliament in June.

Read the full documentation on the bill.

May 2014

Consultation on home reports

In February this year the Property Law Committee responded to the Scottish Government's consultation on home reports. The committee does not believe that the home report is meeting its original objectives, and anecdotal evidence from solicitors has shown that there have been many instances of sellers not being able to put their properties on the market due to the upfront costs simply being too high. The combination of this with a difficult selling market has in the view of the committee contributed to the rise in both repossessions and distressed sales.

The full response can be found here.

Historic Environment Scotland Bill

The Society's Planning Law Committee submitted written evidence on the above Bill at the end of April. The purpose of the Bill is to establish a new lead body for Scotland's historic environment, to be known as Historic Environment Scotland, which sustains the functions of two predecessor bodies, Historic Scotland and the Royal Commission on the Ancient and Historical Monuments of Scotland (RCAHMS). The committee raises three main points in its response, the first being that there is no listed function under s2(2) for specifically promoting the 'maintenance' of the historic environments listed buildings. Secondly, at present Historic Scotland may choose not to object to the demolition of a listed building as a measure of last resort. The committee is concerned that this discretion may not be able to be exercised by Historic Environment Scotland who may be bound in terms of its functions under s2(2) which all point to conservation and enhancement. Thirdly, the committee supports the right of appeal against listing, however note that this would not be available for existing listed buildings.

The Society's full response can be found here.

Energy Law Committee

The newly formed Energy Law Committee has had a busy month and has submitted three consultation responses.

Transposition of Article 14(5)-(8) of the Energy Efficiency Directive (2012/27/EU) in Scotland

The EED updates the EU's legal framework for energy efficiency, pursuing the target of saving 20% of the EU's primary energy consumption by 2020, and of making further energy efficiency improvements after 2020. The consultation considers proposals for the transposition of Article 14(5)-(8) via the amendment of the Pollution Prevention and Control (Scotland) Regulations 2012. The committee is generally supportive of the proposals and that it is appropriate to include the transposition of Articles 14(5)-(8) within an existing and well established regulatory framework. The committee does have a concern relating to district heating and cooling networks, which may not be directly regulated by the PPC regulations but which will be affected by Article 14(5)(d). The committee suggests guidance should be provided by regulatory bodies to parties seeking to develop any such networks.

A consultation on proposals to amend domestic energy supply licence conditions - requiring provision of key energy data in a machine readable format

Along with the Privacy Law Committee, the committee is generally supportive of the policy intent and objectives behind the proposals which is to help and encourage consumers to access and identify more competitive energy tariffs by providing their personal energy tariff data in an accessible, portable and user friendly format. Their main concern however is around the proposal to make the data available via a QR Code (Quick Read) for access by consumers with the reading technology downloaded to their smartphones. While the consultation stated that 51% of UK adults own such a device, the committee is concerned that that immediately excludes 49% of adults who do not own a smart phone, and would therefore not have easy access to the data and may not be able to take advantage of the benefits.  Another objective of the proposal is to help consumers identify the most affordable energy tariff. The committee believes that those needing help the most are the elderly, those with vulnerable characteristics and those on low and limited means. These 'vulnerable consumer groups' are those most unlikely to own a smart phone, tablet computer or have any other means to access the technology required to read the data contained within the QR Code.

Electricity Market Reform (EMR): Contracts for Difference regulations

EMR will create a new mechanism to provide long-term revenue stabilisation to incentivise investment in low-carbon generation - Contracts for Difference (CfDs). CfDs will help to ensure that low-carbon and reliable electricity generation is an attractive investment opportunity. The consultation considers proposed regulations that will cover the process by which the Secretary of State can direct the CfD Counterparty to offer a CfD. The committee is generally supportive of and agrees with the processes outlined in the consultation.

All three responses can be found here.

Carers legislation - consultation on proposals

This Scottish Government consultation proposes to afford more protection to improve outcomes for carers and young carers in Scotland. The Society's Mental Health and Disability Committee welcomes the focus on supporting the estimated 750,000 carers in Scotland but is concerned over the introduction of an 'eligibility framework' which has the potential for those who fall outwith of that framework to be overlooked and not provided with the support they need. The committee also suggests that materials such as easy read guides to help carers and young carers understand any new legislation and their rights, as well as signposting of local support services would be welcomed.

The full response can be found here.

Criminal Justice (Scotland) Bill

The Society has welcomed the Scottish Government's decision to delay the stage 2 consideration of the Bill until after Lord Bonomy has reported on his review findings. The Criminal Law Committee has consistently called for a full review of the law of corroboration alongside all other aspects of the criminal justice system and this delay will allow the Justice Committee to consider the Bill as a whole, including any recommendations made by the Bonomy Review Group.

April 2014

Disabled Persons' Parking Badges (Scotland) Bill

The Society's Equalities Committee submitted written evidence and David Cabrelli, member of the committee, gave oral evidence to the Scottish Parliament's Local Government and Regeneration Committee on March 26. The aim of the Bill is to tackle fraudulent use and strengthen the enforcement powers of the Blue Badge scheme, which affords parking concessions to disabled persons. The committee is generally supportive of the policy intent behind the Bill, but has concerns around the introduction of a strict liability offence, which they believe to be disproportionate, and the review process of any decision being restricted internally to the local authority.

Read the full response.

Bankruptcy and Debt Advice (Scotland) Bill

The Law Society sent a briefing to MSPs ahead of the stage 3 debate; we welcomed Scottish Government amendments to remove interim recall from the Bill and also recommended that the proposed increase in the debtor contribution order from 36 to 48 months should be closely monitored in its implementation and if problems arise the Scottish Government should act swiftly in order to rectify them. We voiced concerns about the removal of judicial involvement in areas where the legal rights of the debtor and creditors are directly affected and also questioned the new, unnecessarily lengthy, appeal process.

All Society documentation pertaining to the Bill can be found here.

Revenue Scotland and Tax Powers Bill

The Society's Tax Law Committee gave oral evidence on 12 March to the Scottish Parliament's Finance Committee on the Revenue Scotland and Tax Powers Bill. Among the points we made, we emphasised the importance of having an independent advisory panel to give clear guidance on acceptable and unacceptable tax avoidance; we expressed the view that legal professional privilege is not relied on as a means of creating tax avoidance schemes; and that the focus of Revenue Scotland should be to collect the correct amount of tax as far as individual taxpayers are concerned, rather than the largest amount of tax.

All Society documentation pertaining to the Bill can be found here.

Courts Reform (Scotland) Bill

The Society gave oral evidence on the above Bill in March. The Society's main concerns centre around the proposals to reform the Scottish courts system, which could adversely affect access to justice due to the insufficient resources being allocated to implement the major reforms. The Society also has concerns around the proposal to introduce a £150,000 threshold for cases to be heard in the Court of Session. This would be a dramatic increase from the current £5,000 threshold and would result in a large transfer of cases from the Court of Session to the sheriff courts.

The Society is concerned that although more cases will be heard in the sheriff courts, there will be little increase in the number of sheriffs. This is likely to lead to delays in cases being determined and could adversely affect access to justice.

Whilst the Law Society backs an increase in the sheriff courts' jurisdiction limit, as it is recognised that costs are lower where disputes are litigated at the most appropriate level, the Society would prefer the limit to be set at around £50,000.

The full written evidence on the Bill can be found on the website.

Economy, Energy & Tourism Committee's inquiry into Scotland's economic future post-2014

As part of this committee's inquiry into Scotland's economic future after the referendum, regardless of the outcome of the vote, Director of Law Reform Michael Clancy gave oral evidence along with representatives from the Institute of Chartered Accountants, the Chartered Institute of Taxation and PricewaterhouseCoopers on the taxation, spending, borrowing and debt implications of either independence or greater devolution of tax-raising powers to Scotland.

Assisted Suicide (Scotland) Bill

The Health and Medical Law Committee has formed a working group along with members of the criminal, mental health and disability and professional practice committees to prepare written evidence on the above Bill. Their first meeting will be held in early April.

March 2014

Criminal Justice (Scotland) Bill

The Law Society continues to press for section 57, which removes the requirement for corroboration, to be removed from the Bill.

The Society's Criminal Law Committee Convener, Ian Cruickshank, has been appointed to Lord Bonomy's review group on corroboration. Whilst we will fully engage with the review, we firmly believe that removing section 57 from the Bill to allow for a statutory review examining how the corroboration requirement works with all other aspects of the Scottish criminal justice system, followed by a short Bill to give effect to any recommendations, is the best way forward.

Full details on the Bill and the Society's comments can be found here.

Lobbying inquiry

The Law Society gave oral evidence to the Scottish Parliament's Standards, Procedures and Public Appointments Committee regarding its inquiry into lobbying.

The Society advised that plans to increase transparency at Holyrood are unlikely to be effective unless a clear, straightforward definition is provided for what constitutes 'lobbying' and who is a 'lobbyist' and that clear lobbying rules are needed in order to ensure public trust.

Full details of the inquiry and the Society's comments can be found here.

Immigration Bill

We provided briefing to Peers on the Immigration Bill, expressing our concerns about plans to remove judicial discretion in cases which engage Article 8 of the European convention, namely the right to respect for private and family life, home and correspondence. The Bill proposes that "little weight should be given" to a private life or relationship when a person's immigration status is "precarious".

The Society is concerned that these new immigration measures to limit judicial discretion and human rights in the UK and may be incompatible with European human rights law.

Full details on the Bill and the Society's comments can be found here

Revenue Scotland and Tax Powers Bill

The Society's Tax Law Committee submitted written evidence to the Scottish Parliament on the Revenue Scotland and Tax Powers Bill. We acknowledged that the Bill attempts to strike a balance between meeting the immediate needs for existing devolved taxes; and establish the framework which could be extended to more, or all, taxes in due course. In striking this balance, we urged that priority is given to creating an effective system for the taxes already devolved, rather than attempting to be comprehensive given the restricted legislative timeframe and resources available.

Full details on the Bill and the Society's comments can be found here.

February 2014


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 Society noted the concession made by the Cabinet Secretary for Justice on 14 January, to carry out a review which will also involve looking whether additional safeguards are required. Whilst this move is certainly welcome, we do not think leaving section 57 on the face of the Bill with a subsequent review of additional safeguards is the best way to proceed.

We consider that if the Scottish Government remains intent on abolishing the requirement for corroboration, it should take place after there has been a full review. This would allow for the interconnections of the corroboration requirement, and all other aspects of the criminal justice system, to be properly explored.

Our firm view is that the appropriate way to proceed would be to remove the provision from the Bill, and create a statutory review panel, which would conduct the review and then introduce a short Bill to give effect to the review's recommendations. The Society would of course 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 intellectual property rights in a Scottish court. The Law Society is concerned that a failure to maintain a dedicated patent court in Scotland risks damaging Scottish businesses which rely upon patents to protect valuable technologies and innovation.

The Intellectual Property Bill, once enacted, will pave the way for establishing a new patent court system in the UK. The Bill provides for (up to four) possible local divisions of the new Unitary Patent Court, but none are currently planned for Scotland. At present, inventors and businesses in Scotland can litigate their patent rights in the Court of Session. The Law Society wants this right to remain. The Society has therefore recommended that the legislation is amended to ensure that the three separate legal jurisdictions in the UK - England & Wales, Northern Ireland, and Scotland - are each granted a patent court under the new system.

Full details on the Bill and the Society's comments can be found here.

Cameras in courts

The Society responded to the consultation issued by the Judicial Office for Scotland on proposals to introduce cameras in Scottish court rooms. The Society is supportive of the filming of legal debates in civil first instance, civil appeals and criminal appeals, either for the purpose of a documentary programme, a news broadcast or a live transmission. The Society is concerned however about the filming of criminal proceedings at the first instance for documentary purposes; the Society 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.

More details on the consultation paper and the committee's response can be found here.

Housing (Scotland) Bill

Michael Clancy, Director of Law Reform at the Law Society, gave oral evidence to the Scottish Parliament on the Housing (Scotland) Bill. In his evidence, he urged MSPs to rethink proposals to regulate letting agents. As currently drafted, the proposals will create an unnecessary dual regulatory regime for those solicitors who undertake letting agency work.

The Housing (Scotland) Bill proposes to require Scottish ministers to establish and maintain a register of letting agents and grants them the power to issue a code of practice. Proposals also provide Scottish ministers with the power to remove a registered letting agent from the register if they are satisfied that the person is no longer a fit and proper person to carry out letting agency work. The Law 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.

Full details on the Bill and the Society's comments can be found here.

Bankruptcy and Debt Advice (Scotland) Bill

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 we are concerned that a failure to do so could result in debtors being sequestrated in perpetuity. These amendments were subsequently lodged and discussed at stage 2. The Society will continue to engage with the Scottish Government and MSPs throughout the passage of this Bill.

Full details on the Bill and the Society's comments can be found here.

Defective and Dangerous Buildings (Recovery of Expenses) (Scotland) Bill

The Society submitted written evidence to the Scottish Parliament on the Bill, welcoming the imposition of charging orders on defective properties, however seeking clarification on whether payments by owners can prescribe.

Full details on the Bill and the Society's comments can be found here.

Community Empowerment (Scotland) Bill

The Society welcomed the initiative, but advised caution in legislating new measures of control for local government, where there is already a wide range of controls and powers in place ready for use where councils are so minded and that the justification is there. The Society said that 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.

More details on the consultation paper and the committee's response can be found here.

January 2014

Criminal Justice (Scotland) Bill

Grazia Robertson, from the Society's Criminal Law Committee, gave evidence to the Scottish Parliament's Justice Committee on solemn procedure reforms. The Society supported proposals for procurator fiscals and defence agents to get together to try to resolve cases, as envisaged by section 66 of the Bill, but warned that there would be significant resource implications.

The Society continues to voice concerns over the proposal to abolish the requirement for corroboration, stating that without introducing alternative safeguards, it will result in the risk of increased miscarriages of justice. The Society has called for a review of the law surrounding corroboration and backed Lord Gill's suggestion that corroboration should be taken out of the Bill and looked at separately. In early 2014, the Society will host a roundtable event with groups for and against the proposal.

Bankruptcy and Debt Advice (Scotland) Bill

The Society reiterated concerns to MSPs ahead of the stage 1 debate, in particular, proposals to extend the debt repayment period from three to four years; the removal of judicial involvement of the sequestration process from the Scottish courts to the Accountant in Bankruptcy; the extended role of AIB and potential for conflict of interest; and the unnecessarily cumbersome and lengthy appeal process that the Bill will introduce.

Agricultural holdings

Mike Gascoigne, Convener of the Society's Rural Affairs Committee, gave evidence to the Scottish Parliament on the proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014.

Land registration

The Society responded to the Registers of Scotland consultation on the implementation of the Land Registration etc (Scotland) Act 2012, which will reform the law in relation to the registration of rights to land in the Land Register of Scotland. The Society supported many of the proposals; however, did not agree that the date of entry should no longer be included in the title sheet. The Society considers that the date of entry can be helpful, particularly in asserting prescriptive periods in insolvency situations.