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:
Our Employment and Equalities Law Sub-Committees responded to the UK Government’s Department for Business, Energy and Industrial Strategy consultation on pregnancy and maternity discrimination.
Following a return to work, new parents may be disadvantaged in a redundancy exercise when they have been out of the workplace for up to one year. They may also be vulnerable to assumptions being made about their commitment to the job and the impact that childcare responsibilities may have on future performance. We believe that extending redundancy protection for a six-month period after returning to work strikes the right balance between the need to address potential disadvantages to new parents, and the need to provide flexibility to employers and respect for other employees facing redundancy. The extension would also help bring clarity and consistency to the legal position for employers and employees.
We also said that current redundancy protections should be extended to parents taking adoption leave and shared parental leave. All parents, male or female, should have the same protection in connection with leave associated with the birth or arrival of a child. In these cases, the six-month protection period should start when the period of maternity leave, adoption leave, or shared parental leave ends.
Our Obligations Law Sub-Committee responded to the Scottish Government’s consultation on defamation in Scots law.
We believe that further evidence of vexatious litigation should be provided if a ‘serious harm’ test is to be introduced as we are not aware that there is currently a problem in Scotland. There is a balance to be found between the right of freedom of expression, as found in Article 10 of the European Convention on Human Rights, and the right of protection of individual reputation. From an access to justice perspective, we are concerned that introducing a statutory threshold could deter legitimate claims. There may also be practical challenges around preliminary hearings to assess whether significant harm has occurred.
We know that many profit-making businesses are small to medium sized enterprises and that defamatory statements could generate significant economic harm and reputational damage. However, in the case of non-financial loss we recognise that introducing a serious harm threshold could help protect freedom of expression and mitigate against the potential chilling effect which might result from a well-resourced legal person threatening legal action.
Our Charity Law Sub-Committee responded to the Scottish Government’s consultation on potential improvements to the statutory charity regulation framework in Scotland, in light of proposals put forward by the Scottish Charity Regulator (OSCR).
The legislation regulating charities is now almost 15 years old, and merits a comprehensive review. We welcome the Scottish Government’s commitment to reviewing the legislation, but we strongly believe that there are many other areas within the legislation – over and above the specific points highlighted in the consultation document – that should be considered as part of this review. After 15 years, it would be a badly missed opportunity not to do so.
Charity regulation needs to command the confidence of the general public, as well as those who serve on charity boards, volunteer, donate and otherwise engage with charities. The majority of charities in Scotland have annual incomes of less than £25,000, so it is critically important that regulation is proportionate and carefully focused. We believe that reforms to Scottish Charitable Incorporated Organisations (SCIOs), particularly to smooth the path for existing charities wishing to convert to this form, would significantly benefit the sector.
We also believe that reform of trustee remuneration, and specific obligations regarding the reporting of notifiable events (where there has been a serious incident affecting a charity), would clarify the duties on charity trustees and promote confidence in the sector as a whole.
Our Criminal Law Committee responded to the proposal lodged by Gil Paterson MSP for a Bill to make the right of defence counsel for a person accused of homicide to instruct a post-mortem examination of the alleged victim subject to an extendable time-limit in order to minimise delays and uncertainty for victims' families.
We believe that there should be enough time for a defence solicitor to decide that a post mortem is required and to arrange for it to be undertaken. We suggested setting a time limit that commences at the date of the accused person’s first appearance in court rather than the date of the Crown’s post-mortem examination as the starting point for the calculation of time limits.