September 2016

The Society’s committees have been working on a number of Scottish Parliament and UK Parliament Bills and consultations, including the Policing and Crime Bill, non-compete clauses and the CMA’s Report on the Legal Services Market.

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

Reforming the Legal Services Market

We have responded to the Competition & Markets Authority's Interim Report on the Legal Services Market. We believe that the legal services sector should be fully transparent from a competition and consumer protection perspective and that providing clear information for consumers is essential to ensure they are making informed choices.

While this particular study focuses on legal services in England and Wales, many of the themes relate to legal services in Scotland and we think consumers across the UK should have easy access to all the information necessary for them to make a fully informed and reasoned choice in selecting a legal services provider. 

We also think that there needs to be change to regulatory processes so that those providing any legal advice or services are regulated to some degree. Consumers purchasing legal services from the unregulated sector, without even being necessarily aware of that, are exposed if the advice is incorrect or something goes wrong.

We believe there is a strong case to have proportionate regulation of the legal services market in each of the UK’s jurisdictions to ensure that consumers enjoy and have the benefit of consistent and assured protection, as is currently afforded to all those seeking advice and representation from a regulated firm.

We have also criticised current legislation which prevents anyone from acting as a notary in England and Wales unless they were admitted there.

The Society is currently in discussions with the Scottish Government in relation to regulating legal services In Scotland.

You can read our full response including our paper to the Scottish Government on the website.

Occupational Pension Schemes

The Pensions Law Committee has responded to a UK Government consultation on plans to cap early exit charges in occupational pension schemes that contain flexible benefits.

The pensions freedoms introduced in April 2015 gave people with defined contribution pensions more options and flexibility about how they fund their retirement. Early exit charges can deter people from exercising these freedoms.

We generally agree with the government’s approach to adopt a cap on early exit charges. However, we’ve warned that there may be some confusion on what constitutes an exit charge, specifically in an occupational pension scheme.

The full consultation response is available to read on the law reform section of the website.

Policing and Crime Bill

The Criminal Law Committee has responded to the Scottish Parliament Justice Committee’s call for evidence in considering its approach to the Legislative Consent Motion on the Policing and Crime Bill.

We are generally supportive of the areas of the Bill where the consent of the Scottish Parliament is required. These areas include: Police Maritime Powers; Cross border powers of arrest; Restoration of littering powers and Firearms.

With particular reference to the cross border powers of arrest we noted that currently there are no powers of arrest available in urgent investigations where an individual is alleged to have committed a serious offence in one UK jurisdiction, where no arrest warrant has been issued and the suspect has turned up unexpectedly in another UK jurisdiction. The provisions at Clause 105 of the Bill will now provide for this in respect of specified offences to be set out in secondary legislation. We support these provisions.

The full response is available to read on the law reform section of the website.

Non-Compete Clauses

The Employment Law Committee has responded to the Department for Business, Innovation & Skill’s call for evidence on non-compete clauses.

We note that non-compete clauses are used in a very wide range of sectors and situations. Properly drafted, such restrictions will protect the interests of the employer without unfairly restricting the employee’s ability to compete. Unduly restrictive clauses will not be upheld by the courts.

The present system, where clauses are routinely included in contracts but do not routinely require to be enforced by the Courts, appears to be working satisfactorily. If the matter does require to be considered by a Court, the legal principles are applied to the facts of the case. This should result in there being restrictions imposed only in appropriate circumstances and for appropriate periods, to protect the legitimate interests of the business where these would have an adverse effect on the employee made subject to the restriction.

We believe that restricting the use of non-compete clauses could have severe adverse effects on businesses and the protection they receive through the law.

The full consultation response is available to read on the law reform section of the website.