Law reform roundup
Recent public policy work of the Society's committees, including driving offences and penalties; pensions; Commission on Parliamentary Reform; Competition & Markets Authority; high-cost credit
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
Driving offences and penalties
The Criminal Law Committee responded to the Ministry of Justice consultation on driving offences and penalties relating to causing death or serious injury, specifically in relation to the proposed new offence of causing serious injury by careless driving.
Historically, the approach has been to impose a sentence based on the level rather than the consequences of carelessness. Careful consideration is required where criminal courts are considering incidents that may involve a momentary lapse of judgment by a driver that results in life-changing consequences for a person injured. It has long been a guiding principle that no one should be punished under a law, unless it is sufficiently clear and certain to enable them to know in advance what conduct is forbidden.
The Pensions Law Committee responded to the UK Government consultation on a package to tackle three different areas of pension scams, including a ban on cold calling in relation to pensions. It identified the offer of a free service of “tracing lost pensions” as a further indication of a scam, since the Pension Tracing Service offers free online support. The committee supports a ban on cold calling as it is unlikely that consumers will benefit from a cold call from an unregulated individual.
It also agrees with the Government’s proposal to limit the right to transfer, in certain circumstances, and in order to protect individuals’ savings; and noted that it would help if guidance was available on the process trustees should follow.
The committee further responded to the DWP’s call for evidence: Bulk transfers of defined contribution pensions without member consent.
Commission on Parliamentary Reform
The Constitutional Law Committee responded to the Commission’s consultation, on all three aspects of its remit: how the Scottish Parliament engages with the people; the identity of the Parliament, as distinct from the Scottish Government; and whether checks and balances are in place to ensure effective parliamentary business.
It is relatively easy for those accustomed to civil service and political structures to respond to parliamentary inquiries and stage 1 evidence gathering, but less so for those whose interaction with government or legislative authorities is unusual or sporadic. Generally, technology could be used to allow further and better engagement and consultation, for example by videoconferencing with community groups and individuals and through social media.
Competition & Markets Authority
The Competition Law Committee responded to the CMA consultation on amending the 2010 guidance on investigating mergers in smaller markets, to raise from £10 million to £15 million the market size that will generally justify a reference, and from £3 million to £5 million the level below which the CMA will generally not consider a reference justified. In principle, it is sensible to introduce a reasonable increase to take account of inflation and some cases where on a cost-benefit analysis investigations might not have been net beneficial, subject to retaining the possibility to depart from the thresholds where appropriate, on which guidance could be issued.
The Consumer Law Committee responded to the Financial Conduct Authority consultation on high-cost credit, including overdrafts. It believes that all high-cost credit products should be reviewed with a view to mitigating consumer prejudice. It would like to know, where individuals deemed uncreditworthy are excluded, what other credit facilities they turn to and how that problem can be addressed. It also believes that both arranged and unarranged overdrafts should be capped, and that after a certain period the bank should be obliged to contact the person in order to attempt to discuss and review their financial situation.
The Policy team can be contacted on any of the matters above at firstname.lastname@example.org; Twitter: @lawscot