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Law reform roundup

16 April 12

Recent work of the Society's Law Reform Department, including Taylor review; tribunals; Scotland Bill; planning; licensing; mental health; floating charges

Taylor review

The Remuneration Committee, a subcommittee of Civil Justice, recently responded to the Taylor Review of Expenses and Funding of Civil Litigation. The committee agreed that there should be a greater recovery for successful parties of their costs; that expenses should continue to follow success; that there is a basic cost involved in any litigation whatever its financial value; that the test of “reasonable” in the judicial tables should be changed to “so far as not unreasonable having regard to all the circumstances of the case”; that rules which will lead to more opposed motions on expenses should be avoided; and that, in contrast to the position in England, damages based agreements should be made illegal in Scotland because of the potential for conflict of interest between solicitor and client.

The full response can be found at www.lawscot.org.uk/forthepublic/law-reform-consultations/2012/civil-justice

Committee hosts Chinese delegation

On 19 March the Company and Insolvency Law Subcommittee hosted a delegation of senior law officials from Yunnan Province, China. The delegation was interested in an overview of company and insolvency law in Scotland and the UK. Presentations were made which prompted a number of questions, and the Society wishes to thank Roy Roxburgh and Brian Moore (Maclay Murray & Spens), Nicholas Grier (Napier University) and Rachel Grant (Brodies) for their invaluable contributions to the event.

Reform of the tribunal system

The Scottish Government recently issued a consultation, Proposals for a New Tribunal System for Scotland, which because of its wide scope is being considered by a number of the Society’s committees and subcommittees, including Pensions, Mental Health and Disability, Employment, Access to Justice, Property, and the Administrative Justice Working Party. The proposals seek to reform the structure of the tribunal system, including bringing the separate devolved tribunals into a single unified system, and to establish a common judicial leadership across the system.

Scotland Bill

The Scotland Bill reached report stage in the House of Lords at the end of March. The Society wrote to peers with particular regard to UK Government amendments concerning the definition of compatibility issues in relation to criminal appeals to the Supreme Court. The Society is seriously concerned about these proposals. Its position is that the Scotland Act 1998 provides a coherent scheme dealing with all questions with regard to powers of the Scottish Parliament and Scottish Ministers in terms of the Act.

Full details of the Society’s letter can be found at www.lawscot.org.uk/forthepublic/law-reform-consultations/bills/scotland-bill

Planning law

At the end of March the Minister for Local Government and Planning, Derek Mackay MSP, made a statement to the Scottish Parliament setting out the Scottish Government’s proposals for future reform of the planning system. The Government has launched five consultations which the planning law subcommittee will be considering: Fees for Planning Applications, Development Delivery, Development Plan Examinations, Miscellaneous Amendments to the Planning System, and General Permitted Development Order.

Common European Sales Law

A joint call for evidence, between the Ministry of Justice and BIS, is being considered by a Society working group. It follows on from an earlier European green paper on contract law and subsequent consultation regarding a European-wide contract law for cross-border business to business and business to consumer transactions.

Licensing law

The Licensing Law Subcommittee is currently considering the Scottish Government’s consultation, Proposals to Amend Proof of Age Regulations, and the Scottish Labour Party members’ consultation for a Proposed Alcohol (Public Health and Criminal Justice) (Scotland) Bill. The proposed bill would aim to promote public health and reduce alcohol-related offending through (a) restrictions on the retailing and advertising of alcoholic drinks; (b) changes to licensing laws; (c) obligations on Scottish ministers to issue guidance and report; (d) directing offenders towards treatment or restricting their access to alcohol.

Mental health

The Mental Health and Disability Subcommittee is considering the recently issued call for evidence on the Social Care (Self Directed Support) (Scotland) Bill, introduced on 29 February, in addition to a number of consultations, including the Scottish Law Commission discussion paper on the regulation of health care professionals.

Land Registration (Scotland) Bill

Following the stage 1 report and debate, the Society is currently considering proposed amendments, particularly in relation to s 108.

Criminal Cases (Punishment and Review)

On 29 March the Justice Committee published its stage 1 report on this bill, which the Criminal Law Committee is currently considering, having previously provided both written and oral evidence.

Consultation on floating charges

The Society has been asked to contribute to the Scottish Government’s consideration of the creation and registration of floating charges, a reform of which it is hoped will facilitate investment by business in Scotland. A working group made up of members from the Obligations, Banking, Property, and Company Law Subcommittees has been formed to deal with this.

For further information on the work of the Law Reform Department, visit www.lawscot.org.uk/forthepublic/law-reform-consultations The team can be contacted on lawreform@lawscot.org.uk

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