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 Scottish Government published its programme for government at the start of September, outlining the new Bills and policy reforms over the 2019-20 parliamentary session. There are 15 new Bills to be introduced, including the Defamation and Malicious Publication Bill, taking forward the Scottish Law Commission’s report in this area, the Continuity Bill, ensuring legal continuity after the UK’s exit from the European Union and the Hate Crime Bill, taking forward the recommendations from the review by Lord Bracadale.
Prior to the publication of the programme, the Children Bill had been introduced, reforming the Children (Scotland) Act 1995 and other legislation. Our committees will be considering each of these, as well as other proposed legislation, and would welcome views from practitioners. There are also a number of other policy reforms to be taken forward in the coming year, including around judicial factors, victims, diversity within the legal profession, a human rights framework, digital and data ethics and a range of other issues.
The Scottish Government consultation on legal aid closed in September and our Legal Aid Committee produced our response. The level of remuneration for legal aid work was not included in the consultation, instead taken forward by the expert fee framework panel that will be reporting by the end of the year. Funding is, however, a fundamental issue to the sustainability of a legal aid system that has seen significant decline in expenditure, cases and providers in recent years. Resolving these issues and also simplifying the system, particularly moving towards a single grant model, were the areas we considered priorities. We did not believe that the development of targeted intervention powers, through directly employed solicitors, contracts or grant-funding was necessary, nor the provision of wider statutory powers.
We responded to the consultation on implementing the UNCRC into domestic law, a policy development that we welcomed. How to give effect to the Convention in domestic law was a particular issue that we addressed, highlighting the example of the incorporation of human rights into the Scotland Act. We also suggested that the language of the UNCRC should remain unchanged in its incorporation, to consistency and comprehensiveness. With the new Childrens Bill before the Scottish Parliament as well and the Law Commissions’ consultation on surrogacy law, the next period will be busy around child and family law issues.
We responded to the Scottish Law Commission’s report on heritable securities. Modernising the law in this area is important, promoting clarity and certainty both within Scotland and in cross-border transactions. A particular area that our committees considered was the creation of a new Scottish debenture and encouraged the Scottish Law Commission to consider this proposal in their subsequent work in this area.
The balance of public protection and individual privacy has been the subject of a number of recent court judgments around the effect of disclosure and the Disclosure (Scotland) Bill, introduced in June, makes a number of reforms. In our written evidence to the Education and Skills Committee at the Scottish Parliament, we highlighted the importance of disclosure to our regulatory functions, ensuring that persons admitted to the roll as solicitors are fit and proper to do so. Guidance on how the tests of relevance and ‘ought’ to be disclosed will be important, so that there is a degree of certainty and predictability to all involved in the disclosure process. We were also sympathetic to the differential treatment of offences committed below the age of 18, one of the significant changes from the Bill.