Public policy highlights November 2019

We also responded to significant reform consultations from the Law Commissions, around heritable securities and around surrogacy. On heritable securities, we agreed that the current legislation is somewhat outdated. We considered that as a general principle the term “standard security” should be retained unless significant changes to the law were to be made. We commented on the scope of coverage of standard securities, considering that it could be appropriate to include directly related liabilities. We supported that proposal that there should no longer be a statutory form of standard security. The issues addressed in this response are wide-ranging and are likely to be of interest to property and lawyers and those involved in securitisation.

Our Child and Family Law committee’s response around surrogacy highlighted some of the practical challenges around the current legal framework for surrogacy, endorsing the proposed new route that would cover most cases, and highlighted the need for more clarity around particular aspects, including the reasonable expenses that could be met.

Follow our responses as they are published here.

Our Criminal Law committee responded to the consultation on strategic police priorities. We highlighted a range of issues for these, including the reducing level of prosecutions at Sheriff and Justice of the Peace court levels, the increasing volume of High Court prosecutions and the nature and complexity of these cases, the importance of monitoring the impact of new domestic abuse legislation and the treatment of vulnerable accused within the criminal justice system. In the longer term, we also highlighted the impact of technology and new investigative techniques, such as facial recognition or artificial intelligence.

Read our consultation response here.

We welcomed the opportunity to comment on the European Union (Withdrawal Agreement) Bill which implements the Withdrawal Agreement between the UK and the EU. However, we had concerns that scrutiny of the Withdrawal Agreement Bill and the Withdrawal Agreement was disproportionately inadequate considering the importance of the complex issues which required careful consideration and which are contained in these documents. There was a considerable risk that on the proposed timetable that scrutiny was being sacrificed for speed. Experience teaches that legislation made in such haste may not result in good law. The bill was paused after the second reading in the House of Commons and fell at the Dissolution of Parliament.

Read our consultation response here.

Our Trade Policy Working Group responded to the International Trade Committee’s call for evidence on Trade and the Environment. We  discussed concerns around the potential for “regulatory chill” as a result of investment protection clauses and recommended that “In light of the growing awareness about climate change and the need to protect the environment, we recommend that if the UK seeks to include investor protection clauses in its future trade agreements, these provisions are carefully drafted in order to ensure clarity over whether such provisions limit the UK’s ability to introduce environmental protection measures. This may help to avoid any regulatory chill or investor uncertainty that would arise from lack of clarity.  The same considerations apply to provisions that seek to promote positive environmental behaviours on the part of the UK’s trading partners.” We also considered the effect of WTO law and trade and investment agreements in addressing environmental issues, including climate change and noted the potential lack of clarity around obligations created by trade agreements and international environmental agreements where there is tension between the two. We emphasised the importance of ensuring coherence, not just across Whitehall but through engagement and cooperation with devolved administrations.

Read our response here.

We have also been looking ahead to some of the work that we aim to deliver in 2020 and there are three particular law reform proposals that we will be taking forward in greater detail. The first of these is around the treatment of vulnerable people in the criminal justice system, and how to achieve effective ‘stakeholder’ communication of information for the vulnerable across the Scottish criminal justice system. The second is around administrative justice principles, on which the convener of our Administrative Justice committee writes elsewhere in this edition. The third is around crofting law, where we will be looking at issues around croft succession, the status and definition of owner-occupier crofter, updating the Statutory Conditions of tenure and definitions of crofting community.

We would welcome views around any of our work, and particularly around our future priorities on vulnerable accused, administrative justice and crofting.

Find out more about our policy work here  or email us at policy@lawscot.org.uk