March 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations including the Criminal Verdicts Bill, LBTT Amendment Bill and post-legislative scrutiny of the Family Law Act 2006.

Other key areas are highlighted below. For more information see the law reform section of the website

Courts and tribunals fees and charges inquiry

Michael Clancy, director of Law Reform at the Law Society, joined the president of the Law Society of England and Wales Jonathan Smithers and Chantal-Aimée Doerries, Chair of the Bar Council, to give evidence to the Commons Justice Committee on court and tribunals fees and charges on Tuesday 9 February.

The Commons Justice Committee raised questions on the impact of the court-fee system for access to justice, cross-subsidisation and the remission-fee system, domestic and international competiveness and employment tribunals.

Our full response and a link to the oral evidence session can be found on our website

Scotland Bill

The Scotland Bill, which seeks to implement the Smith Commission Report and expand the powers of the Scottish Parliament and Scottish Ministers, has now been considered by the House of Lords. The Committee and Report stages completed in February but issues remained concerning the extent to which the bill placed the Sewel convention fully on a statutory footing.

Our concerns about clause 68, which provides the Secretary of State with excessively wide order making powers, were echoed by others and noted by the UK Government. The Minister, Lord Dunlop undertook to bring forward Government amendments at Third Reading to amend the bill.

Links to more information about the bill can be found on our website

Transfer of functions of the Employment Tribunal to the First-tier Tribunal for Scotland

The Scottish Government is consulting on the draft Order in Council that makes provision to transfer specified functions of the Employment Tribunal to the First-tier tribunal for Scotland. The draft Order is made under clause 37 of the Scotland Bill and allows for the transfer of tribunal functions which relate to reserved matters, and deal with Scottish cases, to a Scottish Tribunal. Clause 37 also provides that those functions will be transferred in accordance with the provisions of an Order.

Our Employment Law Committee is looking closely at the issues raised by the draft Order and will be responding to the Scottish Government’s consultation in due course. We have also been attending stakeholder discussions with BIS.

The Government’s consultation can be found on their website

Lobbying (Scotland) Bill

Our Lobbying Working Party welcomed amendments to the bill, which proposes to introduce a statutory register of lobbying activity in Scotland, that mean virtual meetings held using video-conferencing technology will be included. We stated in our written evidence that the bill should include other forms of communications beyond face-to-face meetings if it is to meet the Scottish Government's stated policy aims of ensuring transparency and openness.

We believe the bill could have been further extended to include all forms of communications including letters, emails and phone calls, but this is a step in the right direction in improving transparency and public confidence.

We’re also pleased that the bill will now include communications with special advisers in addition to government ministers and that the definition of special advisers has been clarified within the bill.

Our written evidence and stage 1 briefing paper are available to read on the website

Draft Investigatory Powers Bill

We have welcomed recommendations in the House of Lords and House of Commons Joint Committee on the Draft Investigatory Powers Bill report and were pleased to see that the concerns we raised about legal professional privilege have been recognised and that the committee recommended that it should be expressly protected in primary legislation.

In our response to the Joint Select Committee call for written evidence we emphasised our view that legal professional privilege should be expressly protected within proposed legislation rather than through a code of practice, as had been included in the draft bill in an attempt to mitigate against any possible abuse of the powers where ‘sensitive professions’, including lawyers, are concerned.

We look forward to engaging with the UK Government, as has also been recommended in the report, at the next stage of the bill’s progress.

Our written evidence is available to read on the website

Independent National (whistleblowing) officer

Our Health and Medical Law Committee responded to a Scottish Government consultation on proposals for the introduction of the role of an Independent National (Whistleblowing) Officer. The proposed role is intended to provide an independent and external review on the handling of Scottish healthcare whistleblowing cases.

We believe setting out clear parameters and the powers of an INO would also be essential to ensure consistency in dealing with any issues or complaints and that the role should have prescribed powers if it is to address any gaps not covered by existing policies.We have recommended, amongst other things, that and that the INO should provide a ‘best practice’ whistle blowing policy that all health boards adopt as a minimum standard of practice and that the powers should include the ability to compel a public body to provide evidence and to enforce recommendations if required.

Our response is available to read in the law reform section of the website

General Medical Council consultation on draft confidentiality guidance

The Health and Medical Law Committee, as well our Privacy Law and Mental Health and Disability committees, also responded to the General Medical Council’s Council’s public consultation on draft guidance on confidentiality. We have a number of concerns around the inclusion of Scottish legislation and we hope to work with the GMC to take things forward.

Our full response can be found on the website

Cross-border portability of digital services

Our Intellectual Property committee responded to the UK Intellectual Property Office’s call for view on the European Commission’s proposal for legislation on cross-border portability of digital services which would allow holiday makers travelling in Europe to access online content, such as digital film, music, sport and TV services.

Although we welcomed the intent, we believe the proposed legislation is too timid and should also cover online content services purchased or obtained by a subscriber within the EU, even if that is outside of their home country. This would align with the Commission’s strategy to allow for wider online access to works by users across the EU and would be more straightforward for both the consumers and the providers.

The Law Society’s full consultation response can be found on the website

Land and Buildings Transaction Tax (Amendment) (Scotland) Bill

Our Tax Law Committee has raised concerns that a person buying their first home could be in a worse financial position than someone moving into another residence if proposals for the new tax supplement go ahead.

We also have called for reliefs to the additional tax on second homes to ensure that people who may temporarily have ownership of two properties are not penalised by the new tax and have recommended a grace period of up to 30 days to allow delayed transactions to complete without purchasers having to pay the 3% supplement where they are replacing a main residence.

Our full response is available to read on its website