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Law reform roundup

17 April 17

Recent public policy work of the Society's committees, including Brexit; children's hearings; organ donation; contract: third party rights

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 website.

Brexit

The Constitutional Law Committee responded to the House of Lords European Union Committee inquiry into the political and economic implications of Brexit for the devolution settlement, specifically addressing the repatriation of powers from the EU.

While this is a matter of political negotiation between the UK Government and the devolved administrations, it will be necessary for the transfer of powers to take place within a reasonable timescale and with good cooperation and broad consultation with stakeholders. The Society highlighted areas currently under EU competence which are not specifically reserved under the Scotland Act 1998, and also research by the Law Societies’ Brussels Office into the EU competences concerning agriculture, fisheries, health cover and higher education.

The committee also responded to the UK Government’s white paper on the UK’s exit from, and new partnership with, the EU, which sets out the 12 principles which will guide the Government in forging a new strategic partnership. The response emphasised concerns with ensuring stability in the law, the repatriation of powers post-Brexit, securing the rights of EU nationals in the UK and UK nationals in the EU, and delivering a smooth, orderly exit from the EU.

Children’s hearings

Responding to Holyrood’s Education & Skills Committee’s short inquiry to take stock of issues in the children’s hearings system, the Family Law Committee proposed two additional grounds of referral to the children’s hearings. The first relates to children likely to be subjected, or to be a member of the same household as a person who has been subjected, to female genital mutilation, or to have a close connection to a person involved in the practice. The second relates to children trafficked into the UK where special measures are needed to support them.

The committee also stressed the involvement of solicitors in the system as essential to ensuring that the hearings are fair tribunals in accordance with rights under the ECHR and the UN Convention on the Rights of the Child.

Destitution and asylum seekers

The Immigration & Asylum Law Committee responded to the Equalities & Human Rights Committee’s inquiry on the issue of destitution among asylum seekers, or those with an insecure immigration status in Scotland.

It is particularly concerned with the Home Office’s fee waiver policy for migrants who cannot afford an application to stay in the UK. The committee believes that it is, in practice, creating additional problems for this vulnerable group.

Further, there are few immigration and asylum lawyers in Scotland who can assist migrants on a legal aid basis. This causes further issues with those who are unable to source legal representation and who may also have limited English, but who must apply in terms of complicated Home Office guidance. Guidance also appears to restrict caseworkers’ discretion by instructing them generally not to make further enquiries beyond the evidence submitted by the applicant.

Organ donation rates

The Health & Medical Law Committee responded to the Scottish Government’s consultation on increasing organ and tissue donation and transplantation.

Patterns of evidence suggest that some countries have higher donation rates than others; but while opt-out systems have improved transplant figures in some countries, the same result may not occur elsewhere because of cultural differences and perceptions.

The committee believes that increased awareness and education have an important role to play in increasing people’s willingness to donate organs. The merits of an opt-out over an opt-in system are not clear; however, regardless of the system adopted, increasing public support for either system is essential. Any plan to change existing legislation would have to be accompanied by a large scale education programme on the benefits of organ donation.

Family members have an important role to play. In Scotland there is no legislative requirement to consult the family; however, in practice next of kin are normally consulted and can potentially veto any decision by the donor. There is evidence that their views have a greater and more immediate effect than legislative changes, regardless of the system adopted.

The issue of decision making around organ donation, particularly for young people, was also highlighted. It is vital that sufficient information is available to anyone considering organ donation after their death, and that they have full understanding before making their decision.

Contract: third party rights

The Obligations Committee responded to the Scottish Parliament’s call for evidence on the Contract (Third Party Rights) (Scotland) Bill. It supports the principles of the bill: the law on this issue is outdated compared to other modern legal systems and international instruments which allow greater flexibility. Moving to a statutory footing will allow the irrevocability requirement to be removed and the law to be modernised and clarified. Furthermore, the bill will bring the law into line with other law on unilaterally created rights and therefore improve its consistency, as well as its accessibility for contracting parties, third parties and their legal advisers.

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

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