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Law reform roundup

20 June 16

Recent work of the Law Reform department, including pensions law; British Bill of Rights; commission and diligence in family actions; prescription; EU referendum

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

Pensions law

The Pensions Law Committee responded to a consultation from a working group of employment judges to revise the 2003 booklet Compensation for Loss of Pension Rights: Employment Tribunals. It agrees with a number of the proposals. However, the working group has proposed that the tribunal operates a default assumption that claimants will retire at state pension age. The committee expects that, in many cases, there will be a high chance that employees would retire before that age for a reason other than dismissal/redundancy, and it would be useful to understand what type of evidence would be required in order to depart from the proposed default position. It also warns that the guidance needs to be clear on the distinction between “complex” and “simple” cases, and on the determining factors here.

British Bill of Rights

The Society commented on the proposed British Bill of Rights following the Queen’s speech on 18 May. It believes that the Human Rights Act 1998 has been extremely effective in protecting our rights through the domestic courts. However, there is room to improve the Act, and the proposed Bill of Rights should build on and enhance the current protections. A stronger judicial role may be needed. It would be a backwards step if the ECHR were no longer directly incorporated into the UK’s domestic law, with individuals having to go to the ECtHR in Strasbourg to enforce their Convention rights.

Commission and diligence: family

The Family Law Committee commented to the Scottish Government on suggested changes to the way commission and diligence is exercised in family actions. In general, it believes that the existing law is appropriate. Each case must be assessed on its own circumstances and the discretion of the court is a suitable safeguard in relation to confidential information. However, the committee also agrees that where information being sought relates to children or vulnerable adults who have received care and support services, particular regard should be given to confidentiality and welfare issues. A rule should be considered that havers must always lodge a sealed envelope where information is being disclosed in respect of any child or vulnerable adult.

Prescription

The Obligations Law Committee responded to the Scottish Law Commission’s Discussion Paper on Prescription. One of the main issues reviewed is claims relating to latent damage, following the 2014 UK Supreme Court decision David T Morrison v ICL Plastics. The committee wholly supports this review. For many years in Scotland parties have been exposed to unnecessary legal costs due to the absence of standstill agreements and therefore the need to raise protective proceedings. This, and other issues, has been exacerbated by the decision, which has led to considerable uncertainty surrounding commencement dates for prescriptive periods. The committee also feels that many actions are currently being raised to avoid a time bar argument that could otherwise be dealt with out of court.

EU referendum

As a firmly non-partisan organisation, the Society is not advocating any view ahead of the referendum on EU membership, but a vote to leave raises a number of legal issues and questions that are important for all to consider, whether as solicitor or client. To help inform the debate and having sought members’ views, the Society issued a discussion paper. This can be found at www.lawscot.org.uk/members/international/our-international-work/eu-referendum-2016/

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