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Law reform update

18 July 11

Recent work of the Society's Law Reform Department, featuring the anti-sectarianism bill; UK Supreme Court; EU contract and accused's rights; competition; consumer redress; trusts; and more

Anti-sectarianism legislation

The Criminal Law Committee submitted written evidence and provided oral evidence to the Scottish Parliament’s Justice Committee last month on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. During the evidence session the Society expressed its concerns at the speed. The First Minister has announced a revised timetable and has extended the deadline for written evidence to 26 August. The Criminal Law Committee will use the extended time to scrutinise the bill in further detail.

UK Supreme Court interim report

The First Minister appointed an expert group last month to review the relationship between the High Court of Justiciary and the UK Supreme Court in criminal cases. The group, headed by Lord McCluskey, published its interim report at the end of June.

The Society’s Constitutional Committee is currently considering the interim report and will visit Lord McCluskey over the summer months to discuss the review and the initial recommendations in more detail. The final report will be published later in the year.

EC proposed right to a lawyer

The Criminal Law Committee is currently considering the EC’s proposal for a directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and of the right to communicate upon arrest. The committee’s secretary and convener attended a meeting at the Law Society of England & Wales last month, where representatives from the EU were present to discuss the paper in more detail. The committee will consider the paper in line with its response to the recent Carloway review, and submit a response ahead of the deadline in September.

Feasibility study on EU Green Paper on Contract Law

The Law Society of Scotland formed a working group to consider and respond to the EC’s Feasibility Study on Contract Law, which focuses on practical issues in cross-border contractual relationships. The study follows on from the EU Green Paper on Options for Reforming Contract Law within the EU. The group submitted a comprehensive response which can be viewed on the consultation page of the Society’s website. Members of the Society are intending to meet with MEPs regarding cross-border contract law.

Competition and growth

A Competition Regime for Growth: A Consultation on Options for Reform is a consultation published by the Department of Business Innovation and Skills, seeking views on a proposal to merge the competition functions of the Office of Fair Trading and the Competition Commission to create a single Competition and Markets Authority. The Competition and Obligations Committee submitted a response noting and endorsing the Joint Working Party of the Bars and Law Societies of the UK, but noting that consideration should be given to the criminal cartel offence from a Scottish perspective.

Consumer redress

A joint consultation, Consumer Redress for Misleading and Aggressive Practice, published by the Law Commission and Scottish Law Commission, asked “how far consumers should be given a right to redress when a trader acts in a misleading or aggressive way, in breach of the Consumer Protection from Unfair Trading Regulations 2008”. The Consumer Law Committee stated in its response that it welcomes and supports the aims of the proposals set out.

Trust law

As part of its wide ranging review of trust law which began in 2003, the Scottish Law Commission published the eighth in a series of discussion papers in April this year. This latest paper, which was considered by both the Society’s Trusts & Succession and Pensions subcommittees, seeks to gather further views on a limited number of topics on which the Commission has already consulted, as well as asking for comments on a few new and general issues. A response was submitted on 1 July.

Agricultural holdings

Further to recommendations made by the Tenant Farming Forum on ways to increase availability of agricultural land and encourage new entrants into farming, the Scottish Government issued a consultation on the proposed Agricultural Holdings (Amendment) (Scotland) Bill, which mainly considered changing the definition of “near relative” to include grandchildren, and prohibiting upwards only rent reviews. The Society’s Rural Affairs Committee responded on 30 June.

Incapacitated persons

HMRC is consulting on how best to modernise the definition of “incapacitated person” for direct taxes. The definition is mainly used for individuals within Income Tax Self-Assessment (ITSA). The Society’s Mental Health & Disability Law Committee is currently considering the consultation and will submit a response next month.

We are keen to receive comments from our wider membership on the consultations our committees are considering. To view the consultations we are considering and past responses please visit: www.lawscot.org.uk/consultations

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