Law reform roundup
Recent work of the Law Reform Department, including criminal justice; Lobbying Bill; deregulation; common investment funds; European criminal opt-out
Criminal Justice (Scotland) Bill
The Society submitted written evidence to the Scottish Parliament’s Justice Committee, reiterating its concerns about proposals to abolish the requirement for corroboration in criminal proceedings. The Society warned that removing the requirement, without including sufficiently strong safeguards in the bill, could result in a contest between two competing statements on oath and, as a result, bring increased risk of miscarriages of justice.
The Society wrote to Scottish MPs concerning the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill. The Society warned MPs that the bill would not significantly increase the transparency of lobbying activity at Westminster and could stifle legitimate public debate.
Draft Deregulation Bill
In written evidence to the UK Parliament, the Society raised concerns about changes to the authorisation of insolvency practitioners (particularly the concept of partial authorisation). It questioned whether anyone could be an effective corporate insolvency practitioner in Scotland if they possessed little or no knowledge of bankruptcy legislation.
The Society also questioned proposals to remove the requirement to notify the Registrar of Companies within 14 days when auditors resign. The Society noted that instability in auditors holding office can be a significant negative factor influencing investors, and that Companies House is an early port of call for due diligence on all types of companies for making or withdrawing from investments.
Regulation of common investment funds
The implementation of the Alternative Investment Fund Managers Directive (AIFMD) means that the Financial Conduct Authority (FCA) will be responsible for ensuring that managers of unregulated investment funds, including common investment funds (CIFs) and common deposit funds (CDFs), comply with certain requirements. This will require changes to the Charity Commission’s model schemes for these funds. The Charity Law Subcommittee responded to the Commission’s proposed changes, as participation in CIFs was opened up to Scottish charities by the Charities Act 2006. It recommends that, as well as establishing new collective funds for charities as authorised investment funds regulated by the FCA, existing CIFs should also be converted. In so far as UK charitable tax reliefs remain a factor, the policing of eligibility for participation should be a matter for HMRC.
2014 JHA opt-out decision
The Society submitted a joint response with the Law Society of England & Wales to the Lords EU Select Committee’s follow-up inquiry into the UK’s 2014 opt-out decision. The Societies confirm their position that opting out is likely to cause significant difficulties for cross-border criminal investigations and increase the complexity of advising suspects and victims. It may also give rise to significant unnecessary costs (at a time when legal aid and other reductions are being made to domestic criminal justice funding), and diminish the UK’s ability to influence future developments in this field of law at EU level.
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-bills. The team can be contacted via email@example.com, or follow us on Twitter: @lawscot