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Law reform roundup

14 November 16

Recent public policy work of the Society's committees, including court fees; human rights and Brexit; brain injury and offending; Scottish approach to taxation

The Society’s committees have been working on a number of Scottish and UK Parliament bills and consultations. Key areas are highlighted below. For more information see www.lawscot.org.uk/law-reform

Scottish court fees

In its response to the Scottish Government’s consultation on Scottish court fees, the Society believes that plans to introduce full recovery of civil court costs would be damaging to access to justice, particularly for personal injury claimants and more vulnerable people.

It also states that the proposed 24% rise in fees would be unjust and unjustifiable. It is essential that the courts provide an independent and impartial forum for resolving disputes, and the state has a duty to help those involved have equality of arms. Any new system for court fees would have to ensure they were proportionate, taking into account the Gill and Taylor reviews. The focus of any review of fees should be on redressing the balance between claimants and defenders in personal injury cases, where there is not currently a level playing field. Any changes which fail to recognise this problem risk widening the existing gap. If the Government’s aim is a system where fees cover 100% of the cost of the courts, it will be vital to have proportionate fee levels.

Human rights implications of Brexit

The Society responded to an inquiry issued by the UK Parliament Joint Committee on Human Rights on the impact of the UK’s proposed withdrawal from the EU on the framework for protection of human rights in the UK. This issue touches on a wide range of areas. In general, the rights that are enjoyed in the context of the EU are often found in a variety of sources, but may vary slightly in the detail and options for enforcement and remedy.

Following the UK’s exit from the EU, the European Court of Human Rights (ECHR) would still apply and the UK would remain bound by it. The Secretary of State for Justice has confirmed that the UK Government does not intend to withdraw from the ECHR at this stage, but is still pursuing a repeal of the Human Rights Act 1998 and its replacement with a British Bill of Rights. However, at this stage, there are no detailed proposals on what a new Bill of Rights would contain, so it is difficult to comment on the potential role this would play in either maintaining EU rights in the UK, or developing the UK’s human rights laws in a different direction.

Brain injury and offending

The Health & Medical Law Committee and the Criminal Law Committee have responded to a request from the Scottish Parliament Justice Committee for views relating to brain injury and offending, and the recent report published by the National Prisoner Healthcare Network. In particular, the Justice Committee wishes to ascertain whether defence solicitors consider they have the information and training they need to recognise when brain injury may be present in their clients. It has also asked whether the possibility of a client having a brain injury is a factor commonly taken into account by solicitors during early contact.

The response stated that defence solicitors are not required to, nor generally do, receive training on how to recognise or screen any medical conditions. It has never been their role to ask clients screening questions for undetected medical conditions, including potential brain injury. However, a competent defence solicitor will routinely enquire whether the client has any existing medical condition that might be relevant. It is common for persons appearing from custody or presenting a new complaint to reveal that they receive a benefit awarded only to those with a disability, and this puts the solicitor on notice that there needs to be further enquiry.

A Scottish approach to taxation

The Tax Law Committee responded to the Scottish Parliament Finance Committee’s call for evidence on the approaches and principles which would guide the development of a Scottish approach to taxation.

The committee’s view is that Scotland should adopt its own approach to drafting tax legislation, rather than following the often convoluted approach of UK legislation. It also believes that there needs to be a structured and regular timetable for tax charges. This could include, for example, an annual or less frequent Scottish Finance Bill, through which any issues with devolved taxes could be addressed.

It further suggested that consideration be given as to how to further enhance Scottish Government resources to ensure it has the skills and expertise in relation to taxation policy.

The Policy Team can be contacted on any of these matters at policy@lawscot.org.uk; Twitter: @lawscot

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