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Law reform update

13 December 10

Recent work of the Society's Law Reform Department, including EU contract law framework; victims; forced marriages; public bodies; double jeopardy

EU Commission green paper

The Obligations Subcommittee responded in November to the MOJ consultation on the EU Commission’s green paper on contract law. This contains proposals for a member state-wide contract framework for cross border transactions. This is a major issue, and the Society is to host a meeting with interested parties in mid-December, which will include representatives from the Scottish Government, Scottish Law Commission, business community and Society members. The meeting will discuss the Commission’s proposals ahead of the green paper response deadline in January.

Victims of mentally disordered offenders

The Criminal Law and the Mental Health & Disability Subcommittees submitted a joint response to the Scottish Government’s consultation on disclosure of information to victims of mentally disordered offenders. It sets out the Society’s concerns over the proposed scheme, which among other things, raises confidentiality issues.

Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill

The Society gave evidence to the Scottish Parliament’s Equal Opportunities Committee on 23 November. The bill makes provision for protecting people from being forced to enter into marriage without their free and full consent, and persons who have been forced to enter into marriage, by way of a forced marriage protection order with civil remedies tailored to the needs of victims. The bill will permit the victim, relevant third parties and others (with leave) to apply to the civil courts for such an order. Breach of an order will be a specific criminal offence.

The Society expressed the view that while the bill is a significant step forward, legislation alone will not be sufficient to reduce instances of forced marriage in Scotland. There will need to be an accompanying education and awareness campaign, not just for victims and their families but also for those involved in the administration of justice, to ensure that the legislation can be accessed effectively by those who need it most.

Public Bodies (Reform) Bill

This bill began its committee stage in the House of Lords on 23 November. It gives ministers extensive powers to abolish, modify and amend the powers of various UK public bodies, including the Equality & Human Rights Commission, British Transport Police Authority, the Law Commission, Competition Commission, HM Chief Inspector of Prisons (which has jurisdiction over Dungavel Detention Centre), and many other bodies. The Society made representations at second reading and has also framed amendments which focus on clauses 8 and 9.

Double Jeopardy Bill

The Society provides oral evidence to the Scottish Parliament’s Justice Committee on this bill on 7 December, through Bill McVicar, convener of the Criminal Law Subcommittee, and Alan McCreadie, Deputy Director of Law Reform at the Society. The subcommittee believes that the rule against double jeopardy should be retained but with exceptions in certain limited cases, including where new evidence has emerged which is compelling and was not available at the original trial or when a person subsequently confesses to having committed an offence when they had previously been tried and acquitted. Any exception should not be applied retrospectively and should be limited to more serious cases tried under solemn procedure.

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