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Law reform update

15 February 10

Recent work of the Society's Law Reform Department, including summary justice, public services reform, Treaty of Lisbon, Alcohol Etc Bill, Home Owner etc Bill

by Law Society of Scotland

Summary justice reforms

In January, the Society gave evidence before the Scottish Parliament Justice Committee on how reforms introduced by the Criminal Proceedings etc (Reform) (Scotland) Act 2007 are working in practice. The Society expressed its views about direct measures, where an individual is offered a financial penalty as an alternative to being prosecuted in court. If the individual wishes to challenge the penalty they must indicate this in writing, commonly referred to as “opting out”. In practice, this has shown to be problematic for the majority of clients, who often have problems with literacy. The Society also maintains that there is a balance to be struck between the need for efficiencies in the justice system and the rights of the accused.

Public Services Reform Bill

The Public Services Reform (Scotland) Bill aims to introduce legislation simplifying public bodies in Scotland. The Society has submitted amendments seeking to ensure that ministers are not to make orders changing certain public bodies, where it is important that those bodies remain independent of Government.

Impact of the Treaty of Lisbon

The Society has responded to the European and External Relations Committee Inquiry into the impact of the Treaty of Lisbon on Scotland. The response focused on the extended and new competences that the Treaty will confer and the implications this will have on areas of devolved competence. While welcoming the enhanced role of national parliaments in scrutinising policy proposals, the Society is of the view that in areas of devolved competence it is essential that devolved bodies are involved throughout the consultation process in order that a comprehensive and meaningful UK response can be submitted to the EU. This has the potential for additional complexity to the arrangements currently required for the intra-UK negotiations, which will be addressed.

Alcohol Etc (Scotland) Bill

The Alcohol Etc (Scotland) Bill seeks to regulate the sale of alcohol. The Society has submitted written evidence to the Health and Sport Committee of the Scottish Parliament on the bill. In particular, it has identified legal issues with minimum pricing as outlined in s 1 of the bill, and also the minimum price of packages containing more than one alcoholic product as outlined in s 2.

Home Owner and Debtor Protection Bill

The Society has been involved in scrutiny of the Home Owner and Debtor Protection (Scotland) Bill. In addition to submitting written and oral evidence before the Local Government and Communities Committee late last year, it has met with Government officials on the bill and has suggested amendments. The Society is pleased to see that some of its concerns are being discussed, but continues to maintain that more consultation is needed.


Committee reviews bequests to solicitors

Proposed revisions to the rules preventing solicitors benefiting from wills they are drawing for clients are being put out to consultation.

The current restrictions on legacies in favour of the solicitor, a solicitor in the same firm or an immediate family member are in para 8 in the schedule to the Standards of Conduct Practice Rules 2008. These replace the earlier Code of Conduct for Scottish Solicitors for 2002. Following a number of observations on the wording of para 8, the Society’s Professional Practice Committee set up a working party which has now produced new draft rules.

The purpose of the new rules remains substantially the same, but the working party feel that the new wording will achieve that purpose better than the current wording.

Three exceptions to the general prohibition are proposed:

  • (1) a token legacy, defined for the first time as having a maximum value of £250;
  • (2) a bequest in favour of the testator’s spouse, civil partner or cohabitant, provided that if the testator has any issue when the will is made, those issue are all apparently of both the testator and the beneficiary;
  • (3) a bequest to a relative of the testator provided it is not disproportionately large compared to bequests to others in the same degree of relationship to the testator.

The consultation can be accessed on the Society’s website www.lawscot.org.uk . Responses are requested by 31 March, and any received by that date will be considered by the committee at its meeting on 1 April.

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