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Law reform roundup

19 January 15

Recent work of the Law Reform Department, including corroboration; crofting; mental health; execution in counterpart; Counter-Terrorism and Security Bill

Post-corroboration Safeguards Review

The Society submitted its response to Lord Bonomy’s consultation at the end of November. The Society maintains that a full review of the law of corroboration would have been a better route to examine how the requirement for corroboration interconnects with all other aspects of the criminal justice system. The Society also warned against borrowing safeguards from other jurisdictions without proper regard for how the Scottish system has developed and currently operates.

Crofting community right to buy

On 26 November, Duncan Burd, member of the Rural Affairs Subcommittee, gave evidence to the Scottish Parliament’s Rural Affairs, Climate Change & Environment Committee on part 4 of the Community Empowerment (Scotland) Bill – the community right to buy land. The Society’s evidence centres on the process that crofting communities have to go through, which it argues is complicated and time consuming, the bill’s proposals not going far enough to alleviate these concerns.

Mental Health (Scotland) Bill

Jan Todd, member of the Mental Health Committee, gave oral evidence to the Scottish Parliament’s Health & Sport Committee on this bill, which amends the Mental Health (Care and Treatment) (Scotland) Act 2003. Much of the bill is based on the recommendations of the McManus Committee’s limited review of the 2003 Act in 2009, which no longer reflect current needs or practice. The Society has particular concerns around patients detained in low-security hospitals not being able to appeal against conditions of excessive security; the bill only extends such rights to those in a medium security as well as a high-security facility. The Society believes this is restrictive and discriminatory and has implications under human rights law.

Legal Writings (Execution in Counterpart) (Scotland) Bill

The Society wrote to all MSPs  ahead of the stage 1 debate on 25 November. The Society is very supportive of the bill, agreeing that the process for signing contracts under Scots law needs reform to bring it into line with the law and practice of other jurisdictions, which currently is often adopted in preference to Scots law. It also welcomed the Delegated Powers & Law Reform Committee’s support for the use of electronic signatures as a secure means of executing documents digitally. During the debate, Jenny Marra MSP referred favourably to the Society’s Smartcard scheme, which will provide all practising solicitors with an electronic digital signature.

Counter-Terrorism and Security Bill

This bill was introduced at Westminster at the end of November by Home Secretary Theresa May, and given its second reading on 2 December. The Society submitted a second reading letter, highlighting its concerns around the use of the “fast track” procedure for the bill, given that its provisions have significant implications for the fundamental rights of citizens. The bill, comprising seven parts, introduces a number of measures to restrict the movement of individuals suspected of involvement in terrorism-related activities. It provides the power to seize the passport of a British citizen at any border control where there is reasonable ground to believe the person is leaving the UK for the purpose of engaging in terrorism-related activity, and temporary exclusion orders to prevent a British citizen suspected of being involved in terrorism activity whilst abroad from re-entering the UK. It also amends and extends a number of existing powers relating to the monitoring and controlling of suspects. The Society raised concerns that the introduction of temporary exclusion orders raises ECHR issues, highlighting that consideration must be given to how the bill ensures an individual’s human rights are upheld.

Full details of the above and further information on the current work of the Law Reform department, with links to parliamentary proceedings where appropriate, can be found at www.lawscot.org.uk/forthepublic/law-reform-consultations-and-bills
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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