Law Reform Roundup
August 2010
The Historic Environment (Amendment) (Scotland) Bill
The Society's Planning Law sub-committee submitted written evidence on the above bill, further to two meetings with the Historic Scotland’s Policy Team. The sub-committee is generally supportive of the bill, which makes provision amending certain aspects of the law relating to ancient monuments and listed buildings. However, in respect of the proposal that certificates should be issued in respect of buildings that are not intended to be listed, the sub-committee proposed that there should be a statutory right conferred on an owner or interested person to be consulted on a proposal to list a building; and that there should be a corresponding right to a hearing or inquiry in order to determine unresolved issues. Furthermore, the scope of those entitled to apply for a certificate should be narrowed from “any person” to the owner, lessee or occupier of the land and buildings to which the application relates.
The Wildlife and Natural Environment (Scotland) Bill
The Society’s Environmental Law and Rural Affairs sub-committees submitted written evidence on the above bill, which was introduced into the Scottish Parliament on 9 June 2010. The Bill is wide ranging, covering several areas linked by the themes of wildlife and the natural environment. Rather than updating or amending a number of different statutes relating to wildlife and the nature conservation, the sub-committees were of the view that a consolidation of the law in this area is required. As well as this general observation, the sub-committees’ response raised questions about the requirement for corroboration in some wildlife offences but not others; difficulties in defining non-native species; and whether there is a requirement to create a new register for persons competent to shoot deer when there is an existing register maintained by Scottish National Heritage.
Damages (Scotland) Bill & Damages for Wrongful Death
The Society’s Obligations sub-committee has provided written evidence on the Bill and has also responded to the separate Scottish Government consultation on Damages for Wrongful Death. It is clear from the responses to the Scottish Law Commission’s Report on Damages for Wrongful Death that there is no demand for fundamental reform of this area of law, and the Society is in broad agreement with the majority of its recommendations. In its written evidence, the Society concentrated on four areas which have prompted more debate: the introduction of a new method of assessing the reasonable living expenses that the deceased might have incurred between his actual date of death and his “notional date of death”; the introduction of a new method of calculating the damages payable to a victim’s family; the introduction of a new method of applying multipliers in fatal cases; and the introduction of a restriction on the classes of relative who may bring claims for damages.
The Society was also invited to give Oral evidence on the Bill to the Justice Committee on 7 September.
Draft Penalty Clauses (Scotland) Bill Consultation
The unanimous view expressed by the Obligations sub-committee in its response to this Scottish Government consultation was that the draft Bill as presently drafted is not acceptable. The main reason for the Committee's view is that the draft Bill will lead to considerable uncertainty. It is not limited to clauses requiring a payment of money (as under the present common law). The major premise of the draft Bill is that "manifestly excessive" clauses are invalid. The draft Bill does confer the right to apply to the court for modification of the content of an excessive clause but the court need modify only "if it thinks fit". This was thought to provide insufficient comfort to commercial parties. A minority view of the sub-committee expressed a preference for the provision on penalty clauses contained in the DCFR.
Other
A number of Law Reform committees are also currently considering a number of ther bills and consultations, including:
Children's Hearings (Scotland) Bill
Patients Rights (Scotland) Bill
Equality Act 2010: consultation on matters to be taken into account in determining questions relating to the definition of disability
Equality Act 2010: consultation on additional support needs tribunals
AJTC discussion paper: options for Tribunal Reform in Scotland
For more information on any of the above please contact lawreform@lawscot.org.uk
