Some of the recent work of the Society's Law Reform Department, as it tries to keep abreast of the flood of parliamentary bills
The volume of legislation passing through the Scottish Parliament could either be described as excessive or impressive, depending on your viewpoint. Since the parliament was established in 1999, a total of 116 Acts have been passed, a considerable number of those relating to the Scottish criminal and civil justice system. When bills in progress, withdrawn or fallen are added to the total, the number of legislative matters considered tops 150. And there are no signs that the rate is slowing; already the second session of parliament has dealt with more Acts and bills (81), than the first (73).
Of course, one of the guiding principles behind establishing the Holyrood parliament was that it would legislate on matters which were of importance in Scotland but could not be considered at Westminster because of a lack of parliamentary time. However, an apparent rush to legislate must be taken alongside the need to create “good law”, which operates in the interests of the public, rather than simply “more law”.
The Society’s Law Reform Department is well aware of the balance that must be struck, a task not made any easier by burgeoning workloads. Despite that, the efforts of the Society and its committees – commenting on proposals, giving evidence to Parliament, putting forward amendments, collaborating in Scottish Executive working groups – have led to changes in major pieces of legislation, for example the new Criminal Proceedings etc (Reform) (Scotland) Act.
Alan McCreadie, Deputy Director of Law Reform, explains: “The Society is absolutely inundated with consultations and legislative proposals, particularly relating to criminal law. The fact there are two justice committees at Holyrood illustrates how big an area justice is, and has been for the past eight years. But we always respond on behalf of the profession and the public.”
He says much of the recent focus has been on the criminal proceedings legislation, which contained four key areas of concern: introducing a presumption against bail for sex and violent offenders with a previous conviction; allowing trials to take place in the absence of the accused; raising the maximum conditional offer fine; and introducing an opt-out system for fixed penalty notices.
Fiscal fines: serious issues
Attempts to alter the provisions relating to bail and trials in absence were not successful, although the arguments were put strongly to MSPs in the consultation response and during evidence to the Justice 1 Committee from Gerry Brown, Bill McVicar and Gerry Sinclair. However, amendments were accepted in relation to the fiscal fine upper limit and the opt-out system. In the case of the former, the Executive proposed an upper limit of £500. The Society argued that this would involve the procurator fiscal taking on a quasi-judicial role, and potentially serious cases might not be prosecuted. An amendment by the Conservative MSP, Margaret Mitchell, was taken up by the Justice 1 Committee Convener, Pauline McNeill, which led to the maximum fine being lowered to £300, a figure more in line with the average sheriff court fine. Margaret Mitchell also proposed changes to the opt-out system – whereby a fixed penalty is deemed to have been accepted unless the accused gives notice otherwise – with some exceptions granted by the Executive where an individual could prove he or she was unaware of the existence of a notice.
Alan McCreadie continues: “Some of the arguments we made met with success, and arguably the legislation is better than it would have been had it not been for our active involvement in every stage of the parliamentary process. This happened against a background of responding to a large number of bills produced by the Scottish Parliament. There is no sign of this letting up at all – a whole raft of legislation is being produced and we are constantly trying to keep on top of it. For example, the Custodial Sentences and Weapons Bill has just finished stage 2. The Society will continue to make representations to this and any other legislation.”