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Law reform roundup

13 November 17

Recent public policy work of the Society's committees, including pre-recorded evidence; Universal Service Obligation for broadband; financial regulation and supervision; breach of contract

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 visit the Society's website.

Pre-recorded evidence

The Criminal Law Committee responded to the Scottish Government’s consultation on proposed reforms to criminal law and procedure to address how pre-recorded evidence is taken from child and vulnerable witnesses.

The committee believes that the presumption that such witnesses should have their evidence taken in advance of trial is a suitable longer-term aim. However, it is aware of the challenges, particularly around the speed of proceedings in the initial stages, in achieving this. A suitable approach may be a pilot with child witnesses in High Court cases, rather than categorising by particular ages or a particular type of offence. This would allow for improvement in advance of implementing across wider categories of witnesses and proceedings. 

Concerns are also raised on potential issues around ECHR articles 5 and 6.

Pre-recording evidence from an accused could not practically cover all issues raised by the prosecution, and (unless done in the absence of the Crown) would disclose information to the prosecution. In addition, there would need to be a second commission at the end of the Crown case to allow cross-examination of the accused to take place.

Universal Service Obligation

The Consumer, Competition, Rural Affairs and Technology Law & Practice Committees submitted a joint response to the Department for Digital, Culture, Media & Sport’s consultation on the specification for a broadband Universal Service Obligation (USO) to be set in secondary legislation.

The committees warned that if broadband coverage is not universal, this would have a particularly negative impact on Scotland, which has a higher proportion of remote rural communities. Independently commissioned research has previously identified a risk that people in rural areas who were eligible for legal aid would not be able to find solicitors to provide advice. If steps are not taken to remedy this, it could result in a two-tier justice system. Where it is not possible to obtain advice in person easily, it is perhaps even more important to have access to remote advice.

They note that courts and tribunal services are increasingly moving to online systems, and individuals and businesses seeking access to justice or even wishing to defend a claim against them will therefore require a good internet connection. Concerns are also raised about social inclusion, and the many areas of life where online access is a necessity. Some services – e.g. online banking – can be more crucial to those in more remote communities.

Financial regulation and supervision

The Banking, Company & Insolvency Committee responded to the House of Lords EU Financial Affairs Subcommittee’s call for evidence on the inquiry into the future of financial regulation and supervision following Brexit.

The UK has been an influential participant in creating the EU financial services regime and approach to regulation. In terms of facilitating business, the ability of financial services firms to create branches is considered an efficient way of ensuring that entities are regulated while making it easier for them to expand across borders. This has succeeded in reducing the requirement for businesses to comply with multiple sets of rules. Further, harmonised minimum standards guard against regulatory and supervisory arbitrage and protect consumers.

Having to comply with only one set of regulatory rules generates cost savings. Following withdrawal the UK may choose to operate different regulatory rules. However, there is a risk that significant divergence from the EU rules could damage the ability of UK businesses to compete for EU business. 

A transitional arrangement will be needed to allow people to familiarise themselves with whatever relationship will follow on from withdrawal, even if there is no special trading agreement.

Remedies for breach of contract

The Obligations Committee responded to the Scottish Law Commission’s call for views on its discussion paper on remedies for breach of contract.

The paper includes proposals to modernise a number of the current Scots law terms. The committee does not consider that much of the existing language has given rise to practical difficulties and therefore does not believe that there is a pressing need for this type of reform. However, certain changes in terminology could prove helpful and might make the law more accessible to non-lawyers.

Some of the proposed reforms are supported, but the committee feels that other suggestions are unnecessary or even unhelpful. It considers other international model codes and principles, noting that closer alignment of Scots law to the UN Convention on Contracts for the International Sale of Goods could increase the international marketability of Scots contract law.

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