Each year we undertake new proactive public policy projects to address areas of the law that have failed to meet the needs of our modern society or keep up with technological developments. This year, we have committed to consider the reform of cohabitants’ rights and improvements to the treatment of vulnerable people in the criminal justice system.

Further information on each project is detailed below:

Public policy priorities for 2020

We recognised that considerable work had been undertaken by stakeholders to identify areas of crofting law requiring reform and to progress reform of the law in relation to crofting in Scotland. Our Rural Affairs Sub-committee selected a limited number of matters relating to crofting law which were considered in detail as part of this project. The project focused on the legal aspects of these matters, rather than the underlying policy.

The project considered these matters with a view to suggesting specific improvements to the existing legislation. It focused on:

  • Croft succession – in particular, circumstances where there is no transfer of the tenant’s interest within two years of the date of death
  • The legal status and definition of owner-occupier crofter
  • Reviewing the statutory conditions of tenure
  • Definition of “crofting community”

Following a public consultation that ran from February to May 2020, we issued our full report into crofting law reform in October 2020 and called on the Scottish Government to take prompt action to effect legislative change. 

Scottish administrative justice is going through a time of significant change. In addition to a large-scale transfer of tribunal jurisdictions from Her Majesty’s Courts and Tribunals Service to the Scottish Courts and Tribunals Service, a number of substantive aspects of social security policy are now being devolved. At the same time, the Scottish Public Services Ombudsman has taken on a new review jurisdiction in relation to the Scottish Social Fund and a broader role in setting standards for, and monitoring, public sector complaint handling.

These changes offer opportunities to think strategically about the development of administrative justice in Scotland and to develop a distinctively Scottish approach. At a stage that a more principles-based approach is being taken in areas such as devolved social security, we are exploring the potential for core principles to help determine the ways in which disputes between individuals and the state are resolved, ensuring more effective decision-making, appeals processes and governance.

This work will see research on the use of principles in other jurisdictions and fields, a discussion paper on principles for administrative justice in Scotland and wide-ranging stakeholder engagement through 2020.

This work follows on from the Society’s report published in April 2019 which made a number of recommendations regarding the lack of appropriate understanding and measures for the vulnerable person accused of criminal offences which could among other issues ultimately lead to potential miscarriages of justice.  

Vulnerable people accused of a crime in Scotland need to be treated consistently and fairly. Building on that earlier work, the Criminal law Committee has set up a small working group including academics and practising solicitors. The remit of the group is to review the existing legislation and practices in Scotland in relation to the vulnerable accused person. The aim is to produce a further report by summer 2020 which by focusing attention on the vulnerable accused is  seeking to raise awareness of the issue and its extent and to promote discussion as to possible ways forward in relation to legislative and non-legislative measures. The Committee has been obtaining information from both the  defence and Crown perspectives, which highlight the issues that arise in cases involving vulnerable accused persons. This information  will identify the practices and concerns which will focus the report.

Public policy priorities for 2019

There has been a significant growth in the number of cohabitating couples and families in the UK in recent years. Within the period of 10 years to 2015, the number of cohabiting couple families in the UK grew by almost 30%.

The Family Law (Scotland) Act 2006 (the Act) contains a series of provisions concerning cohabitants – found principally in sections 25 - 29. Section 28 concerns financial provision where cohabitation ends otherwise than by death, and section 29 provides for a surviving cohabitant to make an application to a court following the death of their cohabitant, in intestate cases only.

Following a public consultation in November 2018, we have now issued our report on aspects of sections 28 and 29 of the Act. Our 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.

Influencing the law and policy

One of the main functions of our policy team, along with our network of volunteers, is to analyse and respond to proposed changes in the law.