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Law reform roundup

16 January 17

Recent public policy work of the Society's committees, including domestic abuse; Digital Economy Bill; age of criminal responsibility; transparency in landownership; European copyright framework; gaming machines

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

Domestic abuse

The Criminal Law Committee responded to the Scottish Government’s consultation on the creation of a specific offence of domestic abuse. The committee fully supports measures to improve how the justice system responds to domestic abuse, and welcomes the proposals. However, it believes that banning individuals accused of domestic abuse from conducting their own case could give rise to practical challenges, and resourcing implications must be considered.

Accused individuals are already prevented from conducting their own defence in cases related to certain sexual offences, serious offences involving child witnesses and offences involving other vulnerable witnesses. The committee supports the extension to alleged domestic abuse; however, there is likely to be a significant increase in the number of cases where courts then need to appoint a solicitor.

The eligibility criteria for resourcing and legal aid should also be taken into account, and the Government needs to consider whether those fees would be funded by legal aid without any enquiry into the accused’s financial means.

There are also potential issues around resourcing expert evidence relating to the behaviour of complainers. In certain sexual offence cases, such evidence is already permitted and the committee recommends evaluating the impact of this before moving forward.

Digital Economy Bill

The Digital Economy Bill has been looked at by a number of committees and subcommittees, namely Property & Land Law Reform, Consumer, Criminal, and Technology. A briefing was issued ahead of the second reading in the House of Lords on 13 December 2016 and amendments were submitted ahead of the committee stage.

The Society generally approves of the principles behind the bill, particularly in terms of modernising the electronic communications infrastructure, restricting access to online pornography, making provision concerning intellectual property and data sharing and the regulation of direct marketing. It makes no comments on the relationship between OFCOM and the BBC.

Age of criminal responsibility

The Society welcomed plans to raise the age of criminal responsibility from eight to 12, following a ministerial statement in the Scottish Parliament on 1 December 2016. The present minimum age is the lowest in Europe, the UN Committee on the Rights of the Child has said that setting the age of criminal responsibility below 12 is not “internationally acceptable”, and the Society has argued for several years that a child of eight is too young to be held criminally responsible. Raising the age will bring it in line with the existing age of criminal prosecution in Scotland, providing clarity in the law, and will ensure that children are not treated and labelled as offenders.

Transparency in landownership

The Property & Land Law Reform Subcommittee responded to the Scottish Government’s consultation on proposals for regulations to require the disclosure of persons with controlling interests in landowners and tenants in a register to be held by Registers of Scotland. The regulations are intended to improve transparency in relation to the individuals who are taking decisions in matters relating to land, and the Government is keen to ensure that land in Scotland is sustainably owned, used and developed in the interests of landowners, communities and wider society.

In general, the committee accepts that there are benefits in ensuring greater transparency concerning the identity of underlying beneficial owners of land. However, its response highlights the difficulties in defining “controlling interest” and the practical problems which may arise as a result.

European copyright framework

The Intellectual Property Law Subcommittee responded to the Intellectual Property Office’s consultation on the European Commission’s draft legislation to modernise the European copyright framework. This includes implementation of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, and proposals relating to copyright in the Digital Single Market.

Overall, the committee supports the Commission’s proposals. However, It has some concerns about the definitions used.

Gaming machines review

The Licensing Law Subcommittee responded to the UK Government’s call for evidence on the review of gaming machines and social responsibility measures. The Department for Culture, Media & Sport is consulting on maximum stakes and prizes across all premises licensed under the Gambling Act 2005; the number and location of gaming machines across all licensed premises; and social responsibility measures to protect players and communities from gambling related harm.

The committee has previously noted that there may be different views in the profession as to how the Scottish Parliament should exercise the powers devolved by s 52 of the Scotland Act 2016. There was consensus that it would be an undesirable outcome for some aspects of the 2005 Act and aspects of any future Scottish Parliament legislation to apply to the same betting premises.

It supports the general policy objectives of social responsibility measures, and the need to balance the interests of the industry and those of the public. In respect of regulation of the gambling sector, the committee has noted previously that the Society would prefer an approach that will give clarity to the trade and licensing boards.

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

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