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Law reform roundup

14 March 16

Recent work of the Law Reform department, including court and tribunal fees; Scotland Bill; employment tribunals; Lobbying Bill; investigatory powers; whistleblowing officer; medical confidentiality

The Society’s committees have been working on a number of Scottish and UK Parliament bills and consultations, including the Criminal Verdicts Bill, LBTT (Amendment) Bill and post-legislative scrutiny of the Family Law Act 2006. Other key areas are highlighted below. For more information, see www.lawscot.org.uk/law-reform

Court and tribunal fees

Michael Clancy, director of law reform, joined the President of the Law Society of England & Wales, Jonathan Smithers, and Chantal-Aimée Doerries, chair of the Bar Council, to give evidence to the Commons Justice Committee on courts and tribunals fees and charges on 9 February. They answered questions on the impact of the court fee system on access to justice, cross-subsidisation and the remission fee system, domestic and international competitiveness and employment tribunals.

Scotland Bill

After this bill, which seeks to implement the Smith Commission report, was considered by the House of Lords at committee and report stages, issues remained concerning the extent to which the bill places the Sewel convention fully on a statutory footing. The Society’s concerns about clause 68, which provides the Secretary of State with excessively wide order-making powers, were echoed by others. The minister, Lord Dunlop, undertook to bring forward Government amendments at third reading.

Employment tribunal functions

Scottish ministers are consulting (see feature on p 18) on the draft Order in Council to transfer specified functions of the employment tribunal to the First-tier Tribunal for Scotland, to be made under clause 37 of the Scotland Bill. The Employment Law Committee is looking closely at the issues raised, and has also been attending stakeholder discussions with BIS.

Lobbying (Scotland) Bill

The Society’s Lobbying Working Party welcomed amendments to the bill, which introduces a statutory register of lobbying activity in Scotland, that mean virtual meetings held by videoconference will be included, as will communications with special advisers in addition to Government ministers. The working party believes the bill could be further extended to include all forms of communication including letters, emails and phone calls.

Draft Investigatory Powers Bill

Recommendations in the Joint Committee on the Draft Investigatory Powers Bill report that legal professional privilege should be expressly protected in primary legislation, have been welcomed. In written evidence, the Society emphasised that a code of practice, as provided for in the draft bill, was inadequate to mitigate against any possible abuse of the powers where “sensitive professions”, including lawyers, are concerned.

The Society looks forward to engaging with the UK Government, as also recommended in the report, as the bill progresses.

Independent whistleblowing officer

The Health & Medical Law Committee responded to a Scottish Government consultation on proposals for an Independent National (Whistleblowing) Officer, to provide an independent and external review on the handling of Scottish healthcare whistleblowing cases. The committee recommended, among other things, that the INO should provide a “best practice” whistleblowing policy that all health boards adopt as a minimum standard, and that powers should include the ability to compel a public body to provide evidence and to enforce recommendations if required.

Medical confidentiality

Three committees (Health & Medical Law, Privacy Law and Mental Health & Disability) responded to the General Medical Council’s public consultation on draft guidance on confidentiality. They have a number of concerns around the inclusion of Scottish legislation and hope to work with the GMC to take things forward.

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