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Public policy highlights

15 April 19

Recent work of the Society's policy committees, including Planning Bill; rights of cohabitants; Mental Health Act review; registration of overseas entities

The Society’s policy committees have had a busy month analysing and responding to proposed changes in the law. Key areas are highlighted below. For more information see www.lawscot.org.uk/research-and-policy/  

Planning (Scotland) Bill

The Planning Law Subcommittee issued a briefing to all MSPs ahead of stage 3 of the Planning (Scotland) Bill.

The bill was significantly amended at stage 2 and is now difficult to follow, with contradicting and complex provisions. If enacted as amended, the committee has serious concerns that it would be unworkable and fail to meet its policy objectives. The bill introduces a considerable number of new duties for planning authorities and Scottish ministers, with significant resource, funding and efficiency implications. 

Full consideration should be given to the bill at stage 3. Many of the stage 2 amendments, while having laudable aims, are at a level of detail not normally included in primary legislation. Many of these matters could be dealt with in secondary legislation or planning policy, and some are already covered by existing legislation.

Rights of cohabitants report

Following a consultation in late 2018, the Society issued its report on aspects of ss 28 and 29 of the Family Law (Scotland) Act 2006. The report details proposals to reform those aspects of the law, and calls for a full review of the law on cohabitants in Scotland, in particular the time limits for making a financial claim. See Journal, March 2019, 21 for an article outlining the main points.

Mental Health Act review

Following the ministerial announcement on 19 March of the independent review of the Mental Health (Care and Treatment) (Scotland) Act 2003, the Mental Health & Disability Law Subcommittee welcomed the review and called for better adoption of modern practices to improve the rights and protections of those living with mental illness and impaired capacity.

While Scottish adult incapacity legislation was originally world-leading, it has now fallen behind modern human rights standards. It is particularly welcome that the current review of that legislation is now to be combined with the new review.

The Society believes the time is right for fundamental change, and hopes the Scottish Government will, in advance of law reform, enhance the adoption of modern best practice by all relevant professions and service providers. The review provides a space in which to tackle the deficits in practice under the existing legislation.

Registration of overseas entities

The Property & Land Law Reform, Property Law, and Banking, Company & Insolvency Law Committees submitted a response and gave oral evidence to the Joint Select Committee’s call for evidence on the draft Registration of Overseas Entities Bill, reiterating the need for clarification around the interaction of the proposed regime with the Scottish Register of Persons Holding a Controlled Interest in Land. 

They also raised concerns in relation to drafting, in particular the need to ensure clarity around the definitions of “qualifying registrable deed” and “registrable deed”. 

It is important to ensure certainty in relation to registrable beneficial owners. While the question as to whether an overseas entity is a legal person is for the governing law of the relevant country or territory, this could be difficult for UK-based conveyancing solicitors to ascertain. Other key points focused on maximising transparency in relation to ownership, and practical issues of monitoring and enforcement. 

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

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