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Law reform roundup

17 September 12

Recent work of the Society's Law Reform Department, including social care (self-directed support); land and buildings transaction tax; small charitable donations; better regulation

Social Care (Self-directed support) (Scotland) Bill

The Society’s Mental Health Committee has written to all MSPs ahead of the stage 1 debate on the bill in September. Its main concerns are around ss 5 and 15: it makes the case that the wording is not specific in stating that assistance should only be provided to those who have and retain a decision-making capacity. There is a risk that assistance may be provided to those who do not have the capacity to make a decision, in which case it will go beyond assistance and result in a substituted decision-making process.

The committee is further concerned that there is no provision to ensure that regular assessments are carried out to determine the continued capacity of the assisted person to make decisions, or to ensure that no undue influence is placed on the assisted person by those appointed by the local authority to assist.

The full briefing can be found on the Society’s website at the address below.

Land and buildings transaction tax

The Tax and Property Law Committees have responded to the Scottish Government’s consultation on replacing the UK stamp duty land tax with a land and buildings transaction tax for Scotland. As well as arguing that the net present value model of calculation should not be retained, the Society’s response highlights the problems that exist when trying to apply SDLT to Scottish leases; agrees that the new tax should be structured progressively, provided the rates are competitive; supports the introduction of a general anti-avoidance rule to replace existing complex anti-avoidance measures; notes that anti-avoidance measures in relation to partnerships are particularly complex and no longer necessary; and calls for a clean break in 2015 so that SDLT returns are not required for Scottish land transactions after 2015.

In addition, the committees express concern about the timetable for implementing the legislation to allow all the necessary systems to be put in place for its effective administration, and make a general call for simplicity in designing the tax in order to make it as accessible as possible.

Small Charitable Donations Bill

In advance of the bill’s second reading on 4 September, the Society’s Charity Law Subcommittee submitted its views to MPs. The bill seeks to introduce the Gift Aid Small Donations Scheme, to enable charities and community amateur sports clubs to claim a Gift Aid-style payment on small cash donations up to £20 where it is often difficult to obtain a Gift Aid declaration.

The committee’s overall view was that although the legislation was likely to have limited impact and would not catch all of the charities that could usefully benefit from it, it was a worthwhile measure, as it would go some way towards achieving its policy aim.

The committee suggested that flexibility or provision for a review of how it is working is built into the legislation, in the event that it becomes easier to identify appropriate ways to widen its scope once it has been in operation for some time.

Proposed Better Regulation Bill

A consultation sets out proposals for elements of the proposed Better Regulation Bill, which the Scottish Government intends to bring forward in 2012-13. The consultation seeks views and evidence on a number of issues, but the main proposal is for new powers to enable duties to be placed on local authorities and other regulators to implement national regulation systems and policies. The focus is on process rather than decision making, with the intent of striking the balance between improved consistency, efficiency and effectiveness in regulation while still accommodating local democracy and circumstances.

In a policy context, there should be opportunities for all to flourish through increasing sustainable economic growth, but there should also be a commitment from Scottish Government to improve the efficiency of the public sector, including a focus on better regulation.

A law reform working group is being set up to consider the terms of this consultation in detail and provide ministers with a response in advance of the 26 October deadline. We are also keen to hear from members on their views.

Please contact Alan McCreadie on alanmccreadie@lawscot.org.uk or by telephone on 0131 476 8188 with any views that you may have.

Full details of the above, and further information on the current work of the law reform department, can be found at www.lawscot.org.uk/forthepublic/law-reform-consultations, and the team can be contacted on any of the matters above through louisedocherty@lawscot.org.uk or follow us on twitter @lawscot

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