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Law reform update

19 April 10

Recent work of the Society's Law Reform Department, including legal services; children's hearings; digital economy; alcohol; double jeopardy; public services reform; adult incapacity; pensions

Legal Services (Scotland) Bill

The Justice Committee published its stage 1 report on 12 March. While the committee agreed with the general principles of the bill, it expressed a number of concerns and asked for further clarification from the Scottish Government on a number of issues, including: the lack of equivalent Guarantee Fund provisions; the question of branding and potential consequences for transparency and consumer clarity; and the need for a more robust “fitness to own” test in respect of outside investors. There were specific instances when the committee voiced agreement with evidence given by the Society, particularly in relation to concerns about the powers given to Scottish Ministers under the bill and how the role of the Lord President could be enhanced. The deadline for the completion of stage 1 is now 30 April.

Child Poverty Bill

The Society has tabled amendments to the Child Poverty Bill, which reached the report stage in the House of Lords on 9 March. The proposed amendments put an obligation on ministers to meet targets on low income, material deprivation and persistent poverty.

Children’s Hearings (Scotland) Bill

The Family Law Subcommittee has submitted evidence on this bill, introduced into the Scottish Parliament on 23 February. While acknowledging the effort that the Scottish Government’s team has made to keep stakeholders informed prior to publication of the bill, the subcommittee expressed concern generally at being given such a short response time to consider what is the first major revision of the children’s hearings system in over 40 years. It also has concerns that the bill does not take the opportunity to clarify certain fundamental elements of the children’s hearings system, such as the role of the safeguarder.

Digital Economy Bill

The Society has raised some concerns ahead of the second reading in the House of Commons. The Intellectual Property Subcommittee is concerned that actions of the Secretary of State or OFCOM can deprive an internet subscriber of the service which has been paid for on the grounds of an alleged infringement which has not been proven in the courts. This raises serious issues of compliance with article 6 of the ECHR. At time of writing the Society understands an appeals process is to be included in the bill, which will allow web users accused of illegal file sharing to appeal before their access is slowed or suspended. This may alleviate the Society’s concerns.

Interpretation and Legislative Reform

The Society prepared a number of amendments at stage 2 of this bill, including to s 26 to improve the way in which agreement to accept service of documents using electronic communication can be proved in writing, and the length of time within which such documents can be presumed to have been delivered. The Society’s working party will discuss submitting further amendments at stage 3.

Alcohol Etc (Scotland) Bill

John Loudon, convener of the Licensing Law Subcommittee, and Jim McLean, convener of the Competition Law Subcommittee, gave evidence on the general principles of the bill before the Scottish Parliament’s Health and Sport Committee on 17 March. The Society awaits the committee’s stage 1 report on general principles (including the minimum pricing of alcohol).

Double jeopardy

The Scottish Government issued a consultation paper on the basis of a new evidence exception to the law of double jeopardy on 22 March. The Society’s Criminal Law Committee previously responded to the Scottish Law Commission’s discussion paper on proposed exceptions to the principle in March 2009, and will now consider a response to this latest consultation.

Public Services Reform Bill

The Scottish Parliament passed the Public Services Reform (Scotland) Bill on 25 March. The Society’s Mental Health and Disability Subcommittee was involved in scrutinising sections of the bill relating to the Mental Welfare Commission for Scotland. The committee is pleased to note some of its concerns have been addressed. In particular, an earlier version of the bill would have allowed the Commission to charge a fee for its services. The committee expressed concerns that people could be inhibited from calling the Commission for advice if they thought they might be charged a fee. This provision was removed at stage 3.

Adults with incapacity

Members of the same subcommittee met the Scottish Law Commission in March to discuss the need for reform of Scottish legislation relating to adults with incapacity. The meeting covered a wide variety of capacity issues, including practical issues around guardianship, powers of attorney, and deprivation of liberty.

Pensions consultations

The Pensions Law Subcommittee has been actively involved in responding to consultations throughout March. It has given its views on a number of issues including the implementation of pension tax relief, personal pension schemes disclosure regulations, and a proposed trustee register with the Pensions Regulator.

 

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