Our policy committees analyse and respond to proposed changes in the law. Key pieces of work completed in March are highlighted below. For more information see the research and policy section of our website.
Covid-19 support for legal aid practitioners
Our Legal Aid committee has worked to ensure practical support for legal aid practitioners through the pandemic, with three main areas of support agreed with Scottish Government. A fee increase of 10% over two financial years was agreed, and the first set of regulations, introducing a 5% increase to all fees for civil, children’s and criminal legal aid came into effect on 22 March 2021. We made representations to the Justice Committee, supporting the increase, though placing this in the wider context of fees unchanged for a decade and in some cases, a generation.
The legal aid resilience fund opened for applications on 10 February and closed on 31 March 2021. Decision letters have highlighted several issues around the process for the fund, particularly where firms have been refused on the basis of a projected increase in the number of grants or in projected income, despite all the difficulties faced through the pandemic. We have written to and spoken with the Cabinet Secretary for Justice and received a commitment that the criteria and process for this resilience fund will be reviewed. Our position is clear that if the resilience fund does not provide the support needed to firms affected by the economic shock of the pandemic, then this element of support will need to be revisited.
The traineeship fund for the legal aid sector will launch shortly, with 50% funding for up to 40 trainees into the sector.
Hate Crime and Public Order (Scotland) Bill
The Hate Crime and Public Order (Scotland) Bill passed the Scottish Parliament on 11 March 2021 completing its eventful and high-profile progress since its introduction in April 2020. It is a bill with which the Society has been much involved where the legislation will modernise, consolidate and extend existing hate crime law. ‘Stirring up’ of hatred offences will now apply to additional characteristics listed in the bill: age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.
We have recognised that there has been considerable scrutiny regarding the Bill and with amendments it has improved on clarity though there are still concerns as the Society would have preferred the inclusion of a defence that did not differentiate among the characteristics which creates a hierarchy or perception of hierarchy among if victims. There are fears that the freedom of expression provisions will not be easily understood with a lack of clarity about what comprises hate crime.
We have called for an educational campaign starting at school and included in the school curriculum to promote public awareness and understanding of the law.
The bill also abolishes the offence of blasphemy which has not been prosecuted in Scotland for more than 175 years. Read more.
Domestic Abuse (Protection) (Scotland) Bill
The Criminal Law Committee issued a Stage 3 briefing on this bill, which – as well as reiterate points made at previous stages in relation to (among others) the proportionality and resourcing of the proposed new measures– also emphasised its support for the “reporting” amendment, which the committee had proposed and which was introduced and accepted at Stage 3. The purpose of this is to be able to monitor and record how often and the circumstances in which the measures introduced in this bill are used.
There is to be an implementation group set up to identify what is needed to put this legislation into working practice. This is going to be important as the bill really only provides a framework for these notices and orders; much will lie with its practical application and the way in which Police Scotland operate the legislation which is part of training requirements going forward.
Independent Review of the Human Rights Act
The UK Government appointed an Independent Human Rights Review Panel in December 2020 to consider how the Human Rights Act is working in practice and whether any change is needed. The panel launched a call for evidence on 13 January 2021. The terms of reference of the review focus on the operation of the Act rather than the substantive rights contained within the Convention or whether the UK should remain a signatory to it.
In its response to the call for evidence, the constitutional law sub-committee expressed the view that there is functioning dialogue between the UK courts and Strasbourg; that more evidence was needed to justify a change to the framework set out in sections 3 and 4 of the Act relating to interpretation of the law and declarations of incompatibility; and that overall, the case for changing the application of the Human Rights Act had not been made.
Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill
The Civil Justice Committee and Charity Law Sub-Committee issued a stage 3 briefing on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.
Comments included the need for more detail around scheme contributions, the potential for adverse impact on charity governance and public confidence in the charity sector, concerns about the existence of a waiver which requires the survivor of abuse to abandon civil proceedings, and views on the Bill’s provisions relating to payment of legal fees as amended at Stage 2.