Our policy committees have had another busy year analysing and responding to proposed changes in the law. We do this in order 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.
Since January, we have responded to 96 consultations on various areas of law, 19 Bills from Holyrood and Westminster, and we have examined the potential impact of Brexit on our members and the wider public.
You can read more about some of the year's highlights below:
Following the legal challenge around the process of leaving the EU, we submitted comments on the EU (Notification of Withdrawal) Bill in January and issued a briefing ahead of the Second Reading in the House of Lords in February. After the triggering of Article 50 in March, we highlighted negotiation priorities for the legal profession and submitted detailed responses to both the Brexit and Great Repeal Bill White Papers issued by the UK Government.
Immediately after the Queen’s Speech and the introduction of the EU (Withdrawal) Bill, we raised particular concerns about the use of Henry VIII powers and the potential impact of Brexit on the devolution settlement and post-Brexit court structure. We submitted responses to House of Lords and House of Commons inquiries on the Bill and our Director of Law Reform, Michael Clancy, gave evidence to a number of Scottish Parliament Committees on the progress of negotiations and on the Bill itself.
We have continued to engage with the UK and Scottish Parliaments as the Bill progresses and we issued a briefing to all Scottish MPs ahead of the Second Reading in the House of Commons in September. A number of our amendments were also tabled by opposition parties at Committee stage.
The effect of Brexit has been far reaching and our committees have been examining their remits in relation to the UK’s withdrawal from the EU. The Health and Medical Law Committee issued a paper on the potential impact of Brexit on the provision of health and social care in Scotland. The Competition Committee submitted a response to the House of Lords inquiry on the impact of Brexit on UK competition policy. The Immigration and Asylum Committee responded to the UK Government’s policy paper on safeguarding the position of EU Citizens. The Banking, Company and Insolvency Law Committee submitted a response to the inquiry into the future of financial regulation and supervision following Brexit and the Intellectual Property Law Committee considered the impact that Brexit may have on the area of intellectual property law. We also submitted a response to the Department for International Trade’s paper on preparing for future UK trade policy.
In January, we responded to the Scottish Government’s consultation on the creation of a specific domestic abuse offence. In the response we welcomed the government’s proposals and gave our full support to the measures to improve how the justice system responds to domestic abuse. However, we expressed our concern that banning individuals accused of domestic abuse from conducting their own defence case could give rise to practical challenges and urged that resourcing implications must be considered.
The Domestic Abuse (Scotland) Bill was introduced by the Cabinet Secretary for Justice, Michael Matheson MSP, in March. In May, we submitted evidence on the Bill to the Justice Committee and raised our previous concerns on the practical issues relating to prosecution of the proposed offence of abusive behaviour. In particular, we highlighted the difficulties there may be in obtaining sufficient evidence for a prosecution. We also questioned whether the scope of the legislation should be limited to partners or ex-partners, as controlling behaviour is not limited to these relationships. We also gave evidence to the Justice Committee at Stage 1 and Stage 2 of the Bill.
The Bill is currently at Stage 2 in the Scottish Parliament.
In March, we responded to the Scottish Government’s consultation on the practical application of the draft Gender Representation on Public Boards (Scotland) Bill. We highlighted that many high quality responses were submitted when the Scottish Government previously consulted on this subject in 2014 and suggested that those responses should be revisited as part of the consultation process.
The Gender Representation on Public Boards (Scotland) Bill was introduced in June, by the Cabinet Secretary for Communities, Social Security and Equalities, Angela Constance MSP. In August, we submitted evidence to the Equalities and Human Rights Committee on the Bill. We suggested that a transparent application process should be required for positions on boards to ensure confidence, both from the public and from other members of the board that people appointed are appropriately qualified for the position. We also reinforced our previous comments that voluntary targets are unlikely to be an effective method of achieving gender balance on public boards.
We gave evidence to the Equalities and Human Rights Committee at Stage 1 in September and have continued to engage with the Scottish Parliament to highlight the large numbers of female solicitors who may be suited to board membership.
The Bill is currently at Stage 1 in the Scottish Parliament.
The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill was introduced by the Cabinet Secretary for Justice, Michael Matheson MSP, in June. In August, we responded to the Justice Committee’s call for evidence on the Bill.
We believe that the Bill has the potential to significantly increase access to justice. However, we said that it is difficult to gauge the full impact of the Bill, as many of the details of the provisions will be made at a later stage. We have called for greater certainty on behalf of our members.
In the report by Sheriff Principal Taylor, reference was made to the Contingent Legal Aid Fund and we raised concerns that there is no reference to the Fund in the Bill as drafted. We also raised concerns with the wording of section 10 and believe that the current draft may have unintended consequences. We agreed with the basic proposals for group proceedings under section 17 and suggested that a system which proceeds on the basis of “opt in” would be a positive development and should work for solicitors in practice.
The Bill is currently at Stage 1 in the Scottish Parliament.
In August, we responded to John Finnie’s consultation on the proposed Children (Equal Protection from Assault) (Scotland) Bill. The Bill proposes to change the law to offer children the same legal protection from assault as adults.
We said that removing the common law defence of ‘reasonable chastisement’ would bring greater clarity in the law by eliminating any need to interpret or define ‘reasonableness’ in the context of a physical assault on a child, and provide children with the same protection under the law as adults.
We also stressed that the proposed bill would help to bring Scotland in line with its international obligations. The international legal community is clear that corporal punishment is not in keeping with the present day understanding of human rights. Physical punishment of children is now unlawful in 52 countries around the world and by retaining the common law defence of reasonable chastisement, the law in Scotland signals that some forms of assault against children are acceptable.
The UK is signatory to and has ratified the United Nations Convention on the Rights of the Child, however the UN Human Rights Committee and UN Committee on the Rights of the Child, have both stressed that the law in the United Kingdom is falling short when it comes to the protection of children. They have called for the law to be reformed as a matter of priority to put an end to corporal punishment in all settings, including the home.
The Bill has since been taken forward by the Scottish Government in the legislative programme for 2017/18 and the Society will continue to engage with the Scottish Parliament as the Bill progresses.