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Law reform roundup

17 July 17

Recent public policy work of the Society's committees, including Child Poverty Bill; international sanctions; protective expenses orders; engaging communities; Energy Performance Certificate Register

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 Law Society website

Child Poverty (Scotland) Bill

The Family Law Committee circulated a briefing to all MSPs ahead of the stage 1 debate on 1 June. Reiterating points made in response to the call for evidence on the bill, it suggested the definition of “child” be drafted to include all persons aged up to 18, consistent with the Children and Young People (Scotland) Act 2014. The committee would also welcome the establishment of a National Poverty & Inequality Commission, as an independent body providing oversight and scrutiny of progress in relation to the aims in the bill.

International sanctions

The Society responded to the UK Government’s consultation on the legal powers needed to impose and implement sanctions after the UK’s withdrawal from the European Union. It recommended the consolidation of sanctions legislation, and the introduction of a “Sanctions Code” covering areas of policy including immigration, asset freezing, financial and trade restrictions, control in the transport sector, and implementation and enforcement powers. Consolidation would be practical and reduce the burden on legal and other advisers.
Consolidation and publication of guidance on the sanctions regime is also recommended, with an official campaign to assist solicitors and other advisers become familiar with the new regime. The Office of Financial Sanctions Implementation should also produce sector-specific guidance covering such issues as automated sanctions screening systems and legal professional privilege in the context of sanctions compliance.

Protective expenses orders

The Environmental Law Committee responded to the Scottish Civil Justice Council’s consultation on draft rules for protective expenses orders (PEOs), which seek to ensure that the rules regulating applications for PEOs in environmental proceedings operate so as to give proper effect to the requirement under the Aarhus Convention and EU law that proceedings be “not prohibitively expensive”.

It is important that Court of Session judges demonstrate a consistent approach on how “prohibitively expensive” is defined and applied, and for both the subjective and objective tests to be properly considered. Prospects of success need not be such a focus at the PEO stage. However, there will be other types of applications that may not have the same sifting process for prospects of success.

Consideration should also be given to the rules extending to the sheriff courts for cases such as applications under the Environmental Protection Act 1990, and to their application in nuisance cases, some of which fall within the scope of the Convention.

Engaging communities

The Property & Land Law Reform Committee and the Rural Affairs Committee responded to the Scottish Government’s consultation on draft guidance on engaging communities in decisions relating to land which may affect communities.

Overall, the committees are supportive of measures to encourage engagement. They recognise the difficulty in legislating with sufficient detail to provide certainty without being unduly prescriptive. The consultation focuses on the policy, and a proper analysis of how the system would operate in practice should be undertaken. At present it is very difficult to work out exactly what the law is or what situations the proposals are intended to cover.

Energy Performance Certificate Register

The Property & Land Law Reform Committee responded to the Scottish Government’s consultation on the Scottish Energy Performance Certificate Register (SEPCR), to advise on pending action to amend the statutory fees payable on lodgment of energy performance data and seeking views on funding the register.
It agrees with the continuation of the approach introduced in 2012 and believes that the SEPCR should be self-funded and supported primarily by the fees levied on lodgment of data. It supports an annual review of the lodgment fee, but this should be subject to a cap, so that if costs are high and the number of applications low in any given year, there is not a vast increase in fees. It would also be appropriate that fees are reduced if costs are lowered.

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

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