Law reform round up July 2017

The Family Law Committee circulated a briefing to all MSPs ahead of the Stage 1 Debate on the Child Poverty (Scotland) Bill on Thursday 1 June 2017.

Reiterating previous points made in our submission to the Social Security Committee’s call for evidence on the Bill, we noted that the Scottish Government’s ambition to eradicate child poverty in Scotland by 2030 is to be commended. However, we have suggested for the definition of “child” to be drafted to clearly include all persons aged up to 18. This would be consistent with the definition contained in Section 97(1) of the Children and Young People (Scotland) Act 2014.

We would also welcome the establishment of a National Poverty and Inequality Commission in Scotland. We believe that it is a good idea to have an independent body providing oversight and scrutiny of the progress being made in relation to the aims contained within the Bill.

Read our full briefing

The Society responded to the UK Government’s consultation on the legal powers needed to continue to be able to impose and implement sanctions upon the UK’s withdrawal from the European Union.

We have recommended the consolidation of sanctions legislation and the introduction of a “Sanctions Code” covering areas of policy including: immigration; asset freezing; financial and trade restrictions; control in the transport sector; and implementation and enforcement powers. We believe that the consolidation of legislation would be practical and reduce some of the burden on legal and other advisers.

We have also recommended the consolidation and publication of guidance on the sanctions regime and the development of an official communications campaign to assist solicitors and other advisers in becoming familiar with the new UK sanctions regime. The Office of Financial Sanctions Implementation (OFSI) should also produce sector specific guidance covering the use of such issues as automated sanctions screening systems and legal professional privilege in the context of sanctions compliance.

You can read our full response here.

The Environmental Law Committee responded to the Scottish Civil Justice Council’s consultation on the draft rules for Protective Expenses Orders (PEOs), which seek to ensure that, where applicable, the rules regulating applications for PEOs in environmental proceedings operate so as to give proper effect to the requirement under the Aarhus Convention and EU Law that proceedings should be 'not prohibitively expensive'.

We believe that it is important that the Judges in the Court of Session demonstrate a consistent approach on how ‘prohibitively expensive’ is defined and applied, and for both the subjective and objective tests to be properly considered. We feel that prospects of success need not be such a focus at the PEO stage. However, we acknowledge that there will be other types of court applications that may not have the same sifting process for prospects of success, and so the amount of consideration given to prospects of success may be different in those circumstances.

We also feel that consideration should be given to the Rules extending to the Sheriff Courts for environmental cases (such as applications under the Environmental Protection Act 1990) and to their application in nuisance cases given the Aarhus Compliance Committee’s decisions that some nuisance actions fall within the scope of the Convention.

You can read our full response here.

The Property and Land Law Reform Committee and the Rural Affairs Committee responded to the Scottish Government’s consultation on the draft guidance on engaging communities in decisions relating to land which may affect communities.

Overall, we are supportive of measures to encourage engagement with communities where a decision relating to land will also have an impact on the community. We recognise that there is difficulty in ensuring that legislation includes sufficient detail to provide certainty but is not unduly prescriptive. We note that the consultation document focuses on the policy and feel that a proper analysis of how the system would operate in practice should be undertaken. At present it is very difficult to work out exactly what the law is or what situations the proposals are intended to cover.

You can read our full response here.

The Property and Land Law Reform Committee responded to the Scottish Government’s consultation on the Scottish Energy Performance Certificate Register (SEPCR), to advise on pending action to amend the statutory fees payable on lodgement of energy performance data and to seek views on the manner in which the register is funded.

We agree with the continuation of the funding approach introduced in 2012 and believe that the operation of the SEPCR should be self-funded and supported primarily by the statutory fee levied on each lodgement of energy performance data.

We support the intent to review the lodgement fee on an annual basis to ensure that changes are set at the minimum level needed to cover operational costs. However, we feel that this should be subject to a cap, so that if costs are extremely high and the number of applications extremely low in any given year, there is not a vast increase in fees as a result of an irregular situation. We also feel that it would be appropriate for fees to be reduced if costs are lowered. This would mean that there would only be a rise year on year if it was linked to a trend of rising costs.

You can read our full response here.