Committee updates
To read the full written responses submitted by the Society to
the consultations mentioned below, please refer to the
consultation page.
May 2012
Land Registration (Scotland) Bill
The Property Committee has now submitted amendments to the
Economy, Enterprise and Tourism Committee on the Bill. While
the Society broadly welcomes the provisions of the Bill, it has
concerns around the insertion of section 108, which relates to the
submission of a false or misleading application for registration or
failure to disclose material information in such an
application. The Society proposes that this section is
removed from the Bill on the basis the provision is unnecessary and
that it will not fulfill its intended purpose of tackling
fraud. The full detail of the proposed amendments can be
found here.
Social Care (Self Directed Support) (Scotland)
Bill
The Mental Health and Disability Sub-Committee have been
considering the Bill and will be responding to the Scottish
Government's Health and Sports Committee's call for written
evidence and are also intending to give oral evidence before the
Committee. The objective of the Bill is to provide
individuals with a range of choices about how they receive their
support and places a duty on Local Authorities to provide four
choices to individuals who are assessed and requiring
support. The Society is concerned that the policy
intention behind the Bill is not adequately achieved by section 5,
which relates to a choice of options, as the provision contained
within that section may give rise to human rights issues.
This is because it may be interpreted to apply to individuals who
lack capacity to make decisions, as opposed to those who have
capacity, but would benefit from support.
Criminal Cases (Punishment and Review) (Scotland)
Bill
The Criminal Law Committee wrote to all MSPs ahead of the stage
1 debate of the Bill on 19 April. The committee has
previously given written and oral evidence on Part 1 of the Bill,
which relates to the punishment part of non mandatory life
sentences, and addresses the issue whereby a person receiving a
indeterminate prison sentence (non mandatory life sentence) will be
eligible for parole earlier than a person receiving a determinate
(fixed term) sentence. The committee welcomes the policy
intent of the Bill but acknowledges this is a complex area of law,
and the Bill as it stands will not give rise to a clear legislative
solution. The full letter and the Society's written evidence
can be found here.
Call for Evidence on a Common European Sales
Law
A law reform working group has been considering this call for
evidence which relates to the European Commission proposal to adopt
a common form of contract law for cross border sales transactions
business to business and business to consumer. In principle
the Society are supportive of the proposals, and believe that it
will offer consumers protection that is equal, if indeed not
greater than that currently available and will provide certainty
and transparancy for each party in cross border transactions.
Pensions Law
Iain Talman, who specialises in pensions law and is a partner
with Biggart Baillie, is to step down as convener to the Pension
Law Sub-Committee after 18 years of service. The Society and the
Pensions Committee have benefited greatly over the years from
Iain's knowledge and expertise in the area of pensions law and his
contributions will be greatly missed. Iain is to step down
following the sub-committee June meeting. Norman Dowie
(current vice convener to the sub-committee) will move into the
role of convener, subject to approval by the Law Reform
Committee.
April 2012
Taylor Review
The Society's Remuneration committee, a sub-committee of Civil
Justice, recently responded to the
Taylor Review of Expenses and Funding of Civil
Litigation. The committee agreed that there should be a
greater recovery for successful parties of their costs; that
expenses should continue to follow success; that there is a basic
cost involved in any litigation whatever its financial value; that
the test of "reasonable" in the judicial tables should be changed
to "so far as not unreasonable having regard to all the
circumstances of the case"; that Rules which will lead to more
opposed motions on expenses will take up a disproportionate amount
of court time and should be avoided; and that, in contrast to the
position in England, damages based agreements should be made
illegal in Scotland because of the potential for conflict of
interest between the solicitor and client.
Read the Society's full response.
Company and Insolvency Law Committee host Chinese
Delegation
On March 19 the Company and Insolvency Law sub-committee hosted
a delegation of senior law officials from Yunnan Province,
China. The delegation was interested in an overview of both
company and insolvency law in Scotland and the UK, and
presentations were made on the basic framework and content of
company law in the UK, UK corporate governance, insolvency law and
restructuring and directors' duties and responsibilities. The
session prompted a number of questions from the delegation, and the
Society wishes to thank Roy Roxburgh and Brian Moore (Maclay Murray
& Spens) Nichols Grier (Napier University) and Rachel Grant
(Brodies) for their invaluable contributions to the event.
Consultation on the Reform of the Tribunal
System
The Scottish Government recently issued a consultation
Proposals for a New Tribunal System for Scotland which,
because of its wide scope, is being considered by a number of the
Society's committee's and sub-committee's, including Pensions,
Mental Health and Disability, Employment, Access to Justice,
Property and the Administrative Justice Working Party. The
consultation proposals seek to reform the structure of the tribunal
system, including bringing the separate devolved tribunals into a
single unified system and to establish a common judicial leadership
across the Scottish tribunal system.
Scotland Bill
The Scotland Bill reached report stage in the House of Lords at
the end of March and the Society wrote to Peers with particular
regard to the UK Government amendments concerning the definition of
compatibility issues in relation to criminal appeals to the Supreme
Court. The Society is seriously concerned about these
proposals and it is the Society's position that the Scotland Act
1998 provides a coherent scheme dealing with all questions with
regard to powers of the Scottish Parliament and Scottish Ministers
in terms of the Act.
Read the Society's report stage
letter.
Planning Law
At the end of March the Minister for Local Government and
Planning, Derek Mackay MSP, made a statement to the Scottish
Parliament setting out the Scottish Government's proposals for
future reform of the planning system. As part of the
package of proposals, the Scottish Government has launched five
consultations which the planning law sub-committee will be
considering. The consultations are Fees for Planning
Applications, Development Delivery, Development
Plan Examinations, Miscellaneous Amendments to the
Planning System and general Permitted Development
Order.
Details of all the above
consultations can be found on the
Scottish Government's consultation pages.
Call for Evidence on a Common European Sales
Law
This joint call for evidence, between the Ministry of Justice
and BIS is being considered by a Society working group, and follows
on from an earlier European green paper on contract law and
subsequent consultation regarding a European wide contract law for
transactions cross border business to business and business to
consumer.
Licensing Law
The Licensing law sub-committee is currently considering the
Scottish Government's consultation on
Proposals to Amend Proof of Age Regulations and the
Scottish Labour Party members' consultation for a
Proposed Alcohol (Public Health and Criminal Justice) (Scotland)
Bill. The proposed Bill would aim to promote public
health and reduce alcohol-related offending through (a)
restrictions on the retailing and advertising of alcoholic drinks;
(b) changes to licensing laws; (c) obligations on Scottish
Ministers to issue guidance and report; (d) directing offenders
towards treatment or restricting their access to alcohol.
Mental Health
The Mental Health and Disability sub-committee are considering
the recently issued call for evidence on the
Social Care (self directed support) (Scotland) Bill which
was introduced on the 29 February, in addition to a number of
consultations including the Scottish Law Commission discussion
paper on the regulation of health care professionals.
Land Registration (Scotland) Bill
Following the publication of the Stage 1 Report and debate, the
Society is currently considering proposed amendments, particularly
in relation to Section 108.
View the Society's
documentation on the Bill.
Criminal Cases (Punishment and Review) (Scotland)
Bill
The Justice Committee published its stage 1 report on the 29
March, which the Criminal Law Committee is currently considering,
having previously provided both written and oral evidence.
View
the Society's documentation on the Bill.
Consultation on Floating Charges
The Society has been asked to contribute to the Scottish
Government's consideration of the creation and registration of
floating charges, a reform of which is hoped will facilitate
investment by business in Scotland. A working group made up
of members from the Obligations, Banking, Property and Company
law sub-committees has been formed to deal with this.
Further information on the current work of the law reform
department can be found at on the law reform consultation pages
and for more information on any of the above, please contact lawreform@lawscot.org.uk.