Law reform roundup
Recent public policy work of the Society's committees, including Brexit: judicial and administrative proceedings; physical punishment of children; civil litigation expenses; moveable transactions
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
Brexit: judicial and administrative proceedings
The Constitutional Law Committee responded to UK Government and EU Commission position papers in relation to judicial and administrative proceedings that are ongoing at the point of exit from the EU.
It is critically important for both sides to consider the needs of litigants with cases going before the EU Court of Justice prior to Brexit. Neither paper has taken full account of these and there is a need to adopt a principle-led approach to the reforms to ensure that people taking cases to the CJEU will not be adversely affected.
The Society is concerned that there appears to be a mismatch between the two position papers and it will be essential to ensure that any gaps are addressed. It believes that the negotiations on such important matters must be underpinned by the rule of law and achieve justice for litigants. It is concerned that there is no provision in either paper for cases pending before the CJEU at exit day, leaving litigants or potential litigants uncertain about how their cases would progress.
Even once the UK has left the EU, there will be a need for a determination on applicable EU law in relation to some cases, although the UK will no longer have recourse to the CJEU. It is critically important that all current and pending cases are identified quickly, and that they, in addition to any new cases, are dealt with using adequate transitional arrangements, rather than being left to go through the CJEU system and risk not being heard by exit day.
Physical punishment of children
The Criminal and Family Law Committees responded to the proposed Children (Equal Protection from Assault) (Scotland) Bill. They believe that removing the common law defence of “reasonable chastisement” would bring greater clarity in the law by eliminating any need to interpret or define “reasonableness” in the context of a physical assault on a child, and provide children with the same protection as adults.
The proposed bill would also help to bring Scotland in line with its international obligations. The international legal community is clear that corporal punishment is not in keeping with the present day understanding of human rights. Physical punishment of children is now unlawful in 52 countries around the world, and at present the law in Scotland signals that some forms of assault against children are acceptable.
Civil litigation expenses
The Civil Justice Committee responded to the Scottish Parliament’s Justice Committee call for evidence on the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.
It believes the bill has the potential to significantly increase access to justice. However, it is difficult to gauge its full impact, as many of the details will come at a later stage and the committee has encouraged greater certainty on behalf of members.
Sheriff Principal Taylor’s report referred to the Contingent Legal Aid Fund, and the committee has raised concerns that there is no reference to the fund in the bill. It also has concerns with the wording of s 10 and believes the current draft may have unintended consequences. It agrees with the basic proposals for group proceedings under s 17 and suggests that a system that proceeds on the basis of “opt in” would be a positive development and should work for solicitors in practice.
Several committees submitted a joint response to the Scottish Law Commission’s call for evidence on the draft Moveable Transactions (Scotland) Bill. They are aware that there is strong support for these changes across the profession and encourage the Scottish Government to bring forward legislation in this area in line with the Commission’s recommendations. They consider that the bill as a whole presents a modern, balanced and practical set of reforms that should provide benefits to Scottish businesses – including, and perhaps especially, SMEs – while protecting consumers. They also welcome the making of specific provision for entities actually or potentially subject to insolvency proceedings.
The Policy team can be contacted on any of the matters above at firstname.lastname@example.org; Twitter: @lawscot