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Law reform roundup

13 April 15

Recent work of the Law Reform Department, including Human Trafficking Bill; tax law; interception of communications; Scottish Parliament procedures; Scotland's constitutional future

Human trafficking and exploitation

James Mulgrew from the Society’s Criminal Law Committee gave oral evidence on the Human Trafficking and Exploitation (Scotland) Bill to the Scottish Parliament Justice Committee on 24 March. The Society supports the policy intent of the bill; in the oral session it highlighted its support of a victim-centred approach and that it would favour the introduction of both a statutory defence, available to a person who has committed an offence as a direct consequence of having been trafficked, and the possibility of a plea in bar of trial. This would be in addition to the bill’s proposed requirement on the Lord Advocate to publish guidelines on prosecuting victims of human trafficking offences.

Tax law update

The Tax Committee has been particularly engaged in relation to the implementation of land and buildings transaction tax. In a number of meetings with Revenue Scotland, the LBTT working group discussed various matters including the interpretation of the principal Act and the LBTT signup process. The group has provided comments and recommendations on the LBTT return guidance and LBTT guidance itself.

Volunteer solicitors, trainees and paralegals attended a number of sessions at Victoria Quay in March to test the LBTT return system, which went live on 1 April.

The main Tax Committee has also been busy, and met with HMRC representatives to discuss proposed tax evasion policy. Consultations have also been submitted on draft guidance to extra-statutory concessions, the proposed Revenue Scotland Charter, tax enquiry closure rules and sanctions for tax avoidance. Representatives also met with the UK Government Scotland Office to discuss the further tax devolution proposals.

Interception of communications

The Society responded to the Home Office consultation on draft codes of practice, welcoming the introduction of a code and enhanced safeguards. It highlighted that confidentiality is central to the rule of law, and those seeking legal advice should be assured that any communications with their legal adviser remain strictly confidential. This protection of legal privilege underpins the provision of legal advice. Currently the Secretary of State can issue a warrant for intercepting communications, without any judicial oversight – it is essential that there should be an application to a court for such a warrant. Further, there could be considerable ECHR implications, as articles 6 and 8 will be engaged if lawyer/client communications are intercepted.

Scottish Parliament procedures

Holyrood’s Standards, Procedures & Public Appointments Committee undertook an inquiry last year into the Scottish Parliament’s legislative processes, and published its report in March. The Society submitted written and oral evidence, and was pleased to see in the report a number of mentions of its concerns and suggestions, including this comment on stage 3 of the legislative process: “The Law Society of Scotland summed up the views of many people in a written submission: ‘This is the area with the greatest potential for improvement.’” The full report can be found on the Scottish Parliament website.

Scotland’s constitutional future

The Society’s response to the UK Government’s draft legislative clauses to implement the Smith Agreement highlighted the issues with clause 1 regarding the permanency of the Scottish Parliament, and the challenges this presents from a legal perspective. While the political will is clear, the current wording would still allow a future UK Parliament to repeal the original Act establishing the Parliament. Director of law reform Michael Clancy gave oral evidence on the draft clauses to the House of Commons Political & Constitutional Reform Committee, whose report made similar remarks.

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 on any of the matters above through louisedocherty@lawscot.org.uk, or follow us on Twitter: @lawscot 

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