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Law reform update

20 April 09

Recent work of the Society's Law Reform Department, including criminal justice, forced marriages, flexible retirement, immigration appeals

Alternative business structures

The Society’s response to the Scottish Government consultation Wider Choice; Better Protection is summarised at p 42. The Law Reform Department was heavily involved in the response, and the Director of Law Reform, Michael Clancy also served on the Government’s pre-consultation Bill Reference Group, along with the President, Richard Henderson.

A copy of the Society’s response can be accessed via Information/abs/ .

Criminal Justice and Licensing Bill

The Society recognises the Criminal Justice and Licensing Bill, introduced to the Scottish Parliament on 5 March, as a wide ranging piece of legislation. Both the Criminal Law Committee and Licensing Law Subcommittee have responded to a number of earlier consultations which concerned proposals which now feature in the bill, and each will be examining the provisions relevant to their remit. The Society will also consider the provisions contained in the proposed Public Health Bill, once that bill is published.

Forced marriages

The Family Law Subcommittee recently replied to the Scottish Government’s consultation on forced marriage. While currently there is no law expressly prohibiting forced marriage in Scotland and it is not a specific criminal offence, there is a range of current criminal offences and civil remedies which may be relevant in relation to forced marriage. The consultation considers proposals to implement alternative civil remedies, specific to forced marriage, along the lines of those introduced in England and Wales by the Forced Marriage (Civil Protection) Act 2007. The response concludes that no specific civil remedy is desirable.

Flexible retirement

The Pensions Law Subcommittee has responded to the UK Government’s latest consultation on flexible retirement and pension provision, which seeks to avoid potential conflicts between pensions policy and the application of sched 2 to the Employment Equality (Age) Regulations 2006. The committee has suggested that a broader definition of flexible retirement might be adopted, which would better reflect the reality of an aging workforce, who might not work beyond age 65 in unreduced roles. It has also suggested that exemptions should be extended to include flexible retirement arrangements established prior to the regulations coming into force.

Westminster legislation

Finally, the Society has been looking at two pieces of Westminster legislation and has submitted suggested amendments, both of which have been tabled for debate.

The Obligations Law Subcommittee considered Part 8 of the Local Democracy, Economic Development and Construction Bill, suggesting some technical amendments to provisions which concerned construction contract law.

The Immigration and Asylum Law Subcommittee also considered the Borders, Citizenship and Immigration Bill and raised concerns that the bill transferred asylum and immigration appeals away from the Court of Session to the Upper Tribunal. It also suggested that a regulatory power was necessary to ensure that immigration officers received appropriate education and training, and suggested an amendment to ensure that legal professional privilege was protected when customs information was disclosed.

More information on the above as well as other work the Law Reform Department has been involved in this past month, including the full text of consultation responses, can be accessed via the Society’s website Information/lawreform/ .


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