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.