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Law reform roundup

15 April 13

Recent work of the Law Reform Department, including independence referendum; partnership prosecutions; corroboration; sheriff and jury procedure; disabled persons' parking; marriage

The Society’s Constitutional Law Committee provided written evidence on the Scottish Independence Referendum (Franchise) Bill. The Society’s evidence focused largely on s 3, on prisoners not being entitled to vote. Having considered this provision in light of judgments by the European Court of Human Rights, which ruled that a blanket ban on prisoner voting is incompatible with the Convention, the Society highlighted that these cases referred to elections for a national legislature, not referenda. It therefore concluded that while a legal challenge to the provision was entirely possible, such a challenge was unlikely to be successful.

The Partnerships (Prosecution) (Scotland) Bill was debated by the House of Commons Public Bill Committee on 19 March. The Society submitted two probing amendments, addressing its concerns with cl 4, which has the effect of imposing liability on a new partner for a fine imposed before that partner was assumed to the partnership and of which they have no knowledge. The amendments were withdrawn after deliberation by the committee. The Society will continue to work closely with the UK Government and Scottish Law Commission on this important piece of legislation.

The Criminal Law Committee has submitted its response to the Scottish Government consultation Reforming Scots Criminal Law and Practice: additional safeguards following the removal of the requirement for corroboration. The Society reiterated its concerns that there is no wider review taking place concerning the abolition of the requirement of corroboration against the background of article 6 ECHR. No evidence has been produced to demonstrate that abolition will not result in miscarriages of justice. It also raised concerns with regard to the limited scope of the consultation; in particular, whether policing and prosecutorial decision making will simply shift from a quantitative to a qualitative test. The Society stated that research is required in order to determine how the prosecutorial test and the police reporting standard will operate in practice, post-abolition.

In its response to this Scottish Government consultation, the Criminal Law Committee identified a number of practical issues regarding proposals to implement new sheriff court solemn procedures. These included concerns with proposals that at petition stage sheriffs should make a statement to the accused reminding them of the need to engage with the solicitor throughout the case, making such engagement the starting point for considering a discount on sentence. The committee believes this should be a matter between solicitor and accused, and that an unintended consequence of any such statement may be that there is undue pressure placed on accused persons to plead guilty.

In its response to Dennis Robertson MSP’s proposed member’s bill aimed at strengthening “blue badge scheme” enforcement powers, the Equalities Law Committee suggested that blue badge holders should have an opportunity to respond to allegations of misuse, prior to confiscation. There may be situations where the blue badge is misused by a third party, such as a relative or carer, without the knowledge of the badge holder, and it would be unjust to confiscate the blue badge without a fair and proper investigation.

In its response to the Scottish Government consultation on the Marriage and Civil Partnership (Scotland) Bill, the Family Law Committee expressed the view that the lack of clarity about the meaning of “marriage” may lead to public confusion. The bill envisages a different form of marriage than has historically been the case and recognises that it will be important for the public to understand the differences between the various types of social unit, including cohabitation, civil partnership and marriage, the rationale for recognising so many, and the implications of each. The committee also sent comments to the Marriage (Same Sex Couples) Public Bill Committee at Westminster, expressing some concerns about the procedure for having same-sex marriages performed in England & Wales treated as civil partnerships in Scotland (until equivalent legislation is introduced).

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 via juliabrown@lawscot.org.uk, or follow us on Twitter: @lawscot
  • The Society welcomes Andrew Lamley to the Banking Law Committee.
  • David Bennett, convener, welcomes Fiona Paterson to the Company and Insolvency Committee.
  • The Society thanks Christine O’Neill for her 10-year tenure as convener of the Constitutional Law Committee, from which she resigned in February. Charles Mullin, formally Solicitor to the Advocate General, has been appointed as new convener. The Society also welcomes Brandon Malone and Andy Knox to the committee.
  • Frank Johnstone, convener, welcomes Lauren Wood to the Consumer Law Committee.
  • Bill McVicar, convener, welcomes James Mulgrew and Michael Walker to the Criminal Law Committee.
  • Joyce Cullen, convener, thanks Eilidh Wiseman for her many years of service to the Employment Law Committee.
  • Health & Medical Law is a new law reform committee. The convener is Alison Britton, who will be joined by Dr Sharon Williams, Iris McMillan, Alison Stevenson, Joy Atterbury, Laura Ceresa, May Dunsmuir, Mitan Patel and Rory McPherson.
  • James McLean, convener, welcomes Caroline Piggot to the Intellectual Property Committee.
  • Adrian Ward, convener, congratulates May Dunsmuir on her appointment as vice convener of the Mental Health & Disability Committee.
  • The Society thanks Ross Anderson, who recently resigned as convener of the Obligations Committee, and wishes him every success at the bar. The Society welcomes John Paul Sheridan to the committee, which he will convene.
  • Norman Dowie, convener, congratulates Ian Gordon on his appointment as vice convener of the Pensions Law Committee.
  • Frances McChlery, convener, would like to welcome Lee Murphy to the Planning Law Committee.
  • Mike Gascoigne, convener, would like to thank Willie Henry for his many years of service to the Rural Affairs Committee and to wish him a long and happy retirement.
  • Gordon Wyllie, convener, notes with sadness the loss from the Trust and Succession Law Committee of Professor Mike Meston, who died in February. Recognised as Scotland’s leading authority on the law of succession, Mike’s valuable contribution to the committee’s work, as well as to the study and practice of the law, will be sorely missed.

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