Our policy committees have had a busy month analysing and responding to proposed changes in the law. We do this to positively influence the creation of a fairer and more just society through our active engagement with the Scottish and United Kingdom Governments, Parliaments, wider stakeholders and our membership.
You can read more about some of the month's highlights below:
The Criminal Law Committee responded to the Scottish Government’s consultation on whether the Road Traffic Offenders Act should be amended to give police, traffic wardens and Driver and Vehicle Standards Agency examiners greater flexibility in dealing with low-level road traffic offences in Scotland. The scheme already operates in England and Wales as an alternative to prosecution in court, and provides the option of issuing on-the-spot, fixed penalty notices to suspected offenders.
Extending the fixed penalty scheme to Scotland would promote consistency in respect of the prosecution of road traffic offences throughout the UK, and we can appreciate the arguments in favour of reducing the number of road traffic cases that require to be prosecuted in the courts. However, regardless of the system in place, we believe that that the rights of the accused to opt into the justice system and to have their case heard and determined in court, must be preserved, no matter how minor the offence may appear.
We also said that guidance would be needed to ensure fixed penalty notices could be applied fairly, consistently and proportionately. There would need to be clarity on the types of road traffic offences which would fall under the new scheme. There may well be existing prosecution policy on when the circumstances of an offence merit a warning rather than a prosecution, and we think that any proposed extension of these powers in Scotland should be exercised in accordance with such existing or future policies.
The Administrative Justice Sub-Committee responded to the Department for Work (DWP) and Pensions inquiry on benefits sanctions.
We believe that reviewing decisions around sanctions, through mandatory reconsideration and through appeal to the First-tier Tribunal, is not sufficiently effective or speedy to be regarded as a satisfactory means of redress – resulting in real hardship for some of the most vulnerable people in our society. We have called on the DWP to put in place an effective mechanism for monitoring the quality of decision-making across all of its operations and to undertake a review of the decision-making training it provides to its staff.
While we accept that there may well need to be power to make reasonable directions to claimants, and for some sanctions to be available if these directions are not followed, evidence shows that the UK Government’s policy objectives in this area are not being achieved. Claimants are not being treated with dignity and respect. Best practice is not being developed through learning from appeal decisions and, in some individual cases, human rights may well have been breached. It has long been apparent that there are some very serious issues to be examined in this area, and this inquiry offers a real opportunity to create a better benefit system across the UK and provides much needed insight as a new benefit system is developed in Scotland.
The Criminal Law Committee responded to the UK Parliament’s EU Home Affairs Sub-Committee inquiry into the practical and legal challenges for negotiating a security treaty with the EU.
We believe that negotiation on any UK-EU security treaty needs to take account of the potential impact on the devolved administrations. Though security is a matter reserved to the UK Parliament, law and order, criminal law and criminal justice are the responsibility of the Scottish Parliament and are relevant when considering the UK’s security.
We believe that the highest levels of security and the protection of the UK and EU citizens need to be secured after Brexit. The UK must continue to co-operate with the relevant EU law enforcement agencies, networks and systems on a similar basis and Scotland should play its part to fulfil its current level of commitment and responsibility in that respect.
The Consumer and Technology Committees submitted a joint response to the House of Lords Select Committee on Communication’s inquiry on how the regulation of the internet should be improved, and whether a new regulatory framework for the internet is necessary or whether the general law of the UK is adequate.
Many regulatory frameworks can be applied in both an online and offline context and a large part of the internet can already be said to be regulated. We have proposed that a better option may be not to look at ‘regulating the internet’ but instead to test new regulation and review existing regulatory frameworks to ensure that they are applicable to the digital environment. Taking a sectoral approach to regulation also guards against the unintended consequences and potential negative impact on both businesses and consumers which may result from adopting a one-size-fits-all approach to disparate areas.
However, new regulation to promote better business practices, may prove helpful. The European Commission has proposed a regulation on promoting fairness and transparency for business users of online intermediation services. Recent events also suggest that regulation of social media platforms could be an area for further investigation and consideration.
That said, any change or new framework needs to be evidence-based and proportionate. There is a risk that increased, or even divergent regulation might damage the UK as an attractive place to set up and invest, particularly in the post-Brexit landscape.
The Planning Law Sub-Committee issued a briefing to all MSPs ahead of the stage 1 debate on the Planning (Scotland) Bill in the Scottish Parliament.
We believe that the Bill, as introduced, is difficult to follow and we consider this to be contrary to the intention to involve the public in both the consultation and planning processes.
We raised concerns around the scrutiny of the National Planning Framework and the removal of Strategic Development Plans. We also raised concerns around the practicalities of the evidence report stage for Local Development Plans and the strength of community engagement in local planning.