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Law reform roundup

16 December 13

Recent work of the Law Reform Department, including Criminal Justice Bill; Banking Reform Bill; Tribunals (Scotland) Bill; Children etc Bill; Immigration Bill; Anti-social Behaviour etc Bill

Criminal Justice (Scotland) Bill

On 26 November, Raymond McMenamin from the Society’s Criminal Law Committee gave evidence to the Justice Committee on the proposal to remove the requirement for corroboration. He spoke of the Society’s serious concerns about abolishing the requirement for corroboration without introducing alternative safeguards, stating that it will result in the risk of increased miscarriages of justice and threaten the reputation of Scotland’s criminal justice system.

Murray Macara QC, also from the Criminal Law Committee, gave oral evidence on the sentencing and appeal sections of the bill on 19 November. He expressed the Society’s concerns that the High Court does not have to quash a conviction or sentence, even when a miscarriage of justice may have occurred, on the basis that it is not in the “interests of justice to do so”. The Society is concerned that this provision could have serious consequences for those wrongly convicted of crimes.

Banking Reform Bill

The Society submitted four amendments to the Financial Services (Banking Reform) Bill. The first set sought to clarify part 4. In relation to clause 15, the Society wished to expressly exclude legal advice in “taking decisions, or participating in the taking of decisions”, as this would erode the distinct professional relationship and obligations a solicitor provides to clients. The Society also sought to clarify how clause 22 could impact on the duty on Scottish solicitors to maintain confidentiality and how it affects legal professional privilege more broadly. The amendments were tabled by Lord MacKay of Drumadoon QC and were withdrawn after assurances from the Treasury peer, Lord Newby, that s 413 of the Financial Services and Markets Act 2000 adequately protects legal professional privilege and the duty to maintain confidentiality. The second set of amendments, tabled by Lord McFall of Alcluith, sought to increase protection for consumers who have entered into a contractual relationship with payday lenders.

Tribunals (Scotland) Bill

The Society submitted three amendments to the bill, which seek to (1) provide a definition of “tribunal’”; (2) ensure the distinct characteristics of tribunals are protected and taken into account in the making of procedural rules; and (3) provide that the existence of a mental health chamber is protected in primary legislation.

Children and Young People

Members of the Family Law Committee met with the Children and Young People (Scotland) Bill team to express serious concerns about the information sharing provisions in the bill. The committee will be submitting additional briefing to MSPs on this issue at stage 2.

Immigration Bill

The Society submitted written evidence on this UK Parliament Bill, expressing concerns about part 4 (marriage and civil partnership) as it makes no provision for consultation with Scottish ministers or the Scottish Parliament. The Society is concerned that it could cut across the Sewel convention and stated that it requires significant amendment to be made constitutionally appropriate.

Anti-social Behaviour etc Bill

The Family Law Committee responded to the Justice Committee’s call for evidence on the forced marriage provisions contained in a legislative consent memorandum on the Anti-social Behaviour, Crime and Policing Bill. The committee stated that although it believes the Scottish Government is bound by the terms of the Istanbul Convention, which provides for the criminalisation of the “intentional conduct of forcing an adult or a child to enter into a marriage”, it was disappointed that the decision to legislate to criminalise forced marriage was made by the UK Government following consultation in England & Wales, but not in Scotland, thereby failing to take account of our distinctive legal background in this area. The committee has asked to know what consultation the UK Government carried out with the Scottish Government before finalising the bill, and why wider consultation on its proposals was not carried out.

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 juliabrown@lawscot.org.uk or follow us on Twitter: @lawscot

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