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16 March 09

Law reform update

A roundup of some of the many projects currently being undertaken by the Society's team

Arbitration Bill

The Society has set up a working party to consider the bill, which was introduced to the Scottish Parliament on 29 January. The working party supports the initiative to strengthen the law of arbitration with the view to attracting international business. It also welcomes the clear message that parties remain free to adopt the UNCITRAL Model Law (the default set of rules drafted by the UN Commission on International Trade Law), after concerns were expressed over its repeal.

Calman Commission

Christine O’Neill, of the constitutional law subcommittee, and Michael Clancy, Director of Law Reform, gave evidence for the second time to the Calman Commission on Friday 20 February in the Scottish Parliament. It is properly recorded and there will be a video record as well.

The Commission had a number of issues to raise with the Society’s representatives. These included:

the compellability of judges before the Scottish Parliament – something which is expressly prohibited under the Scotland Act 1998;

the role of the Lord Advocate in pre-introduction scrutiny of Government bills, and aspects of the interpretation of schedule 5 to the Scotland Act 1998;

the necessity for clarity in terms of registration as a Scottish charity with the Office of the Scottish Charities Register and compliance with HMRC rules, where the Society had suggested that registration with OSCR should automatically lead to recognition by HMRC as a charity;

the possibility of re-reservation of Scottish insolvency law under one of the heads of schedule 5, as proposed by the Institute of Chartered Accountants but which the Society is not persuaded is appropriate;

and lastly the role of declarations of incompatibility and whether they should apply to Scottish Parliament legislation.

The Commission has further questions to ask us, but had too crowded a schedule on the day to deal with all the matters it wanted to raise. These include issues relating to parliamentary procedure, the role of the Presiding Officer and aspects of competence. The Society will most likely be asked back for evidence on a further occasion.

Family law

The family law subcommittee recently responded to a call for evidence on the rights of children by the UK Parliament’s Joint Committee on Human Rights. As well as scrutinising bills and drafts for human rights implications, the Joint Committee also undertakes inquiries into human rights issues during which it seeks evidence from a wide range of groups and individuals with relevant interests and experience, such as the inquiry into children’s rights.

In its call for evidence, the Joint Committee provided a list of areas of particular interest relating to children’s rights. The subcommittee’s response focused on three areas: children in detention; decriminalisation of children; and children’s right to express views in relation to education.

Banking Act

The first Act of Parliament passed this year, the Banking Act, did not go unnoticed by the department. The banking law subcommittee expressed some concerns and suggested some technical amendments to ensure that the bill better reflected banking practice north of the border. On this advice, amendments were eventually tabled and the Society was thanked by Lord Davies, his appreciation appearing in Hansard.

The final version of the Banking Act can be found at www.opsi.gov.uk/ acts/acts2009a .

All the Society’s consultation responses can be viewed via its website. See www.lawscot.org. uk/Public_Information/consultation/2009/ for further information on the areas highlighted above as well as the other work of the department.