The Society’s policy committees analyse and respond to proposed changes in the law. Key pieces of work completed in December are highlighted below. 

SEPA consultation on enforcement action revised guidance

The Environmental Law sub-committee responded to the Scottish Environment Protection Agency’s consultation on the revised guidance on the use of enforcement action.

Among other points, our response highlighted broad support for SEPA’s revised guidance on enforcement action and proposed guidance on the use of variable monetary penalties (VMPs). In relation to the use of VMPs, the detailed nature of the proposed approach, while retaining simplicity was commended. The response highlighted the importance of clarity around the use of SEPA’s enforcement powers and when matters will be reported to COPFS for prosecution. It was noted that consistency in the VMP regime is important and will be a key concern for operators. 

The response noted that the approach to calculating weightings in the VMP regime to be appropriate but noted that as this is a new regime, it would be appropriate to monitor this and carry out a review in 2-3 years’ time.

European Data Protection Board

The Privacy sub-committee responded to the European Data Protection Board call for comments on their recommendations (01/2020) on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data. This relates to the ability of companies to transfer tools outside the European Economic Area and will accordingly be of relevance to the UK as a third country from 1 January 2021.

This was a joint response with the Law Society of England and Wales.

Hate Crime and Public Order (Scotland) Bill

The Criminal Law committee submitted a Stage 1 briefing on the Hate Crime and Public Order (Scotland) Bill. Among other comments, it welcomed the establishment of a Working Group on Misogynistic Harassment, however it pointed out that the timing of it means that none of the Group’s findings could be included within the current Bill. This would leave the matter of misogyny to be dealt with by affirmative regulations (if required), which the committee strongly opposes.

Domestic Abuse and Protection (Scotland) Bill

The Criminal Law Committee also submitted a Stage 1 briefing on the Domestic Abuse and Protection (Scotland) Bill, the objective of which is to improve “the protections of available for people who are at risk of domestic abuse, particularly where they are living with the perpetrator of the abuse” by creating new short term measures for the courts and the police to provide protection to a person at risk of abuse.

The response reaffirmed the committee’s view that “domestic abuse is a situation that must not be tolerated in our law or society” but emphasised the need for gender-neutral drafting of the bill and raised specific concerns about the proposals to create new protection orders and protection notices, including their interaction with existing remedies.

Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

Our Charity law and Mental Health and Disability sub-committees along with the Civil Justice committee contributed to a Stage 1 briefing on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

Comments included the need for more detail around both what a ‘fair and meaningful’ contribution to the redress scheme would be and the statement of principles; where alternative approaches to financial contributions by charities may be required to avoid compromising the independence of and confidence in the sector; the potential for the waiver to significantly prejudice the interests of the survivor and expose them to the costs of legal action up to that stage; and accessibility and support for adults with incapacity.

National Security and Investment Bill

The National Security and Investment Bill, which aims to establish a new statutory regime for Government scrutiny of, and intervention in, investments for the purposes of protecting national security, was introduced by the Secretary of State for Business, Energy and Industrial Strategy on 11 November 2020.

Our Banking, Company and Insolvency Law and Competition Law Sub-committees submitted written evidence on the bill in advance of its committee stage, welcoming the overarching objective of the bill, which recognises the critical importance of safeguarding the UK’s infrastructure in the context of national security and a modern understanding of how that security might come under threat. 

However, they highlighted a number of concerns regarding the practical application of the proposed regime, including how wide the potential parameters of the bill are. Although the intention is to narrow the issues through secondary legislation, the committees consider that further detail should be provided in the bill in the interests of ensuring sufficient and appropriate scrutiny in parliament.

UK-EU Trade and Cooperation Agreement

A trade agreement was finally reached between the UK and EU on 24 December and on 30 December, MPs voted in favour the deal by 521 votes to 73. The deal was quickly signed into law by the EU (Future Relationship) Act 2020, which passed all stages in both the House of Commons and House of Lords and was given Royal Assent that day in order to take effect from 11pm on 31 December.

We produced a preliminary briefing on the trade agreement and implementing legislation in advance of the parliamentary debate on 30 December, although our policy team will be looking more closely at their terms in the coming days and weeks.