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Law reform update

14 September 09

A summary of the Society's recent work on public services reform, crofting reform, obligations and employment

Public Services Reform (Scotland) Bill

The Society has responded to the Scottish Parliament’s Finance Committee call for written evidence on the Public Services Reform (Scotland) Bill. The response, drafted by the Law Reform Committee, focuses on part 2 of the bill which gives Scottish Ministers wide ranging powers in relation to the functions of a large number of public bodies.

In its response, the Society raised concerns about the extent of this power, which would enable Scottish Ministers to modify, confer, abolish, transfer or provide for the delegation of any function, and amend the constitution of or abolish any person, body or office holder listed in sched 3 to the bill. The response questions whether it is appropriate to allow Scottish Ministers to abolish, by order, a number of public bodies created by primary legislation.

Among others, the Mental Welfare Commission is included in the list of public bodies which are to be subject to this power, despite assurance from the Minister for Public Health and Sport that the MWC would not be included in the Bill. The Society’s Mental Health and Disability Law Subcommittee strongly opposes the abolition of this independent body, which safeguards the welfare and rights of people made vulnerable by incapacity or mental illness.

The response also comments on further order-making powers conferred on Scottish Ministers by s 13 of the bill, and the imposition of a duty to co-operate with Scottish Ministers on a number of independent public bodies.

While noting that part 2 of the bill is an important measure which makes provision for improving public functions and reforming legislation, the Society will continue to seek to ensure that the bill is adequately consulted on. The Society has been invited to attend an oral evidence session with the Finance Committee in late September.

Draft Crofting Reform (Scotland) Bill

The Rural Affairs Subcommittee has responded to the Scottish Government’s consultation on the draft Crofting Reform (Scotland) Bill. The provisions in the draft bill have been developed in response to the Inquiry on Crofting’s final report and the subsequent Government response.

The Society’s response focuses on the provisions which concern the crofting register and suggests that the bill relies too heavily on secondary legislation in this area. The response also suggests that a number of examples in part 4 of the bill, which has been drafted to help crofters raise the finance for their croft tenancy, would benefit from clarity.

Obligations Law Subcommittee

The Obligations Law Subcommittee has written to the Scottish Law Commission to comment on its Issues Paper on Micro-Businesses, published jointly with the Law Commission for England & Wales. The issues paper proposes that small businesses should be treated as consumers for the purposes of the pre-contractual relationship in insurance contract law.

The subcommittee supported this idea on the basis that it would have the merit of consistency with the Unfair Contract Terms Act 1977, and can be justified on the grounds that small businesses, like consumers, often lack specialist knowledge as to the general law on insurance and some small businesses are unlikely to have specialist insurance expertise in-house. The subcommittee suggested that the definition of “micro-business” should be consistent with the definition adopted by the Financial Services Ombudsman.

Employment Law Subcommittee

The Employment Law Subcommittee has responded to a Department for Business Innovation and Skills consultation on revised draft regulations on the blacklisting of trade unionists. In the response, the committee approves of the Government’s intention to further protect workers who wish to be members of trade unions, and supports the draft regulations as a useful additional mechanism to achieve that intention.

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