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All the Society’s amendments were tabled by Lord Mackay of Drumadoon and, following debate, were withdrawn.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