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 Planning Law Sub-Committee issued a briefing to all MSPs ahead of the stage 3 proceedings on the Planning (Scotland) Bill.
The Bill was significantly amended at stage 2 and, as a result, the Bill is now difficult to follow with contradicting and complex provisions. If the Bill is enacted as amended, we have serious concerns that it would be unworkable and fail to meet its intended policy objectives. The Bill introduces a considerable number of new duties for planning authorities and Scottish Ministers and the resource, funding and efficiency implications of this will be significant.
We have called for the Bill to given full consideration at stage 3. Many of the amendments to the Bill at stage 2 are focused at a level of detail that would not normally be included in primary legislation. Appreciating the laudable aims of many of the amendments, a large number of these matters could be dealt with in secondary legislation or planning policy and in respect of some matters, are already covered under existing legislation.
Following a consultation in late 2018, we have now issued our report on aspects of sections 28 and 29 of the Family Law (Scotland) Act 2006. The report details proposals to reform those aspects of the law, and we have called for a full review of the law on cohabitants in Scotland.
There were 237,000 cohabiting couples in Scotland in 2011. Under the current legislation, a surviving cohabitant can only make an application to the court following the death of their cohabitant where there is no will. Where cohabitation ends due to separation, the Act stipulates that cohabitants have a period of one year to make an application to the court and when a cohabitant dies, the surviving cohabitant has a period of just six months from the date of death to make an application. According to earlier research, 76% of solicitors think time limits are a problematic area of the Act.
Our Mental Health and Disability Law Sub-Committee issued a statement following the Ministerial announcement of the independent review of the Mental Health (Care and Treatment) (Scotland) Act 2003 on 19 March. We welcome the review and have called for better adoption of modern practices to improve the rights and protections of those living with mental illness and impaired capacity.
While Scottish adult incapacity legislation was originally world-leading, it has now fallen behind modern human rights standards. It is particularly welcome that the current review of that legislation is now to be combined with the new review of mental health legislation.
We believe that the time is right for fundamental change, and we hope that the Scottish Government will use the period of review to enhance the adoption of modern best practice by all relevant professions and service providers in advance of law reform. The review provides a space in which to tackle the current deficits in practice under the existing legislation
Our Property and Land Law Reform, Property Law, and Banking, Company and Insolvency Law Committees submitted a response and gave oral evidence to the Joint Select Committee’s call for evidence on the Draft Registration of Overseas Entities Bill.
We reiterated the need for clarification around the interaction of the proposed overseas entities regime with the Scottish Register of Persons Holding a Controlled Interest in Land.
We raised concerns in relation to the drafting of the Bill, in particular, the need to ensure clarity around the definitions of “qualifying registrable deed” and “registrable deed”.
It is important to ensure certainty in relation to registrable beneficial owners. While the question as to whether an overseas entity is a legal person is a matter for the governing law of the relevant country or territory, we highlighted concerns that this could be difficult for UK-based conveyancing solicitors to ascertain.
Other key points focused on maximising transparency in relation to ownership and practical issues in relation to monitoring and enforcement.