Abortion, adulthood, agriculture, succession and tax…

The Society responded to the Health, Social Care and Sport Committee of the Scottish Parliament’s structured call for evidence on the Abortion Services (Safe Access Zones) (Scotland) Bill.

The Society’s written evidence highlighted that any attempt to introduce and enforce safe access zones is likely to engage a range of fundamental human rights, and that legislation in this area must seek to balance these competing rights in line with established domestic and international human rights principles.

The written evidence suggested that the Bill should include reasonable limits for the minimum and maximum radius of safe access zones, and called for clarity in relation to the criminal offence created by section 5 of the Bill to ensure that the provision is proportionate. It also noted that the Bill does not set out any principles or factors which should be considered in determining the boundaries of safe access zones or specify the competing rights that must be taken into account, and suggested that overarching principles could be included on the face of the Bill to assist with the proper balancing exercise required. The written evidence suggested that there may be merit in providing for a post-implementation review of the legislation after it has been in operation for an appropriate period of time.

The written evidence also highlighted that the Bill should not be seen as setting a precedent for the widespread curtailment of protest, for example in relation to climate change or other issues.

The Society’s Mental Health and Disability Sub-Committee issued a briefing ahead of the Scottish Parliament’s Stage 1 debate on the Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill.

The briefing was supportive of the aim of the Bill, which is to improve outcomes for disabled children and young people in the transition to adulthood. The briefing highlighted that the changes proposed may interact with several other current legislative developments, and that care must be taken to avoid inconsistency or duplication.

The briefing was supportive of plans to introduce a National Transitions to Adulthood Strategy, stressing the importance of full and effective consultation in doing so and the need for clear, effective and accessible mechanisms for disadvantaged persons to seek redress or remedy in the case of failure to comply. The briefing was also supportive of provision for a Scottish Minister to have special responsibility for exercise of functions under the Bill.

The briefing also commented on proposals for transitions plans, highlighted the need for a forum for redress and remedy where disputes arise. It also suggested strengthening provisions regarding ascertaining the views of the child and young person and others, review of transitions plans, and the references to diagnosis in the Bill.

Finally, the briefing called for clarity on the definitions of ‘child’ and ‘young person’ in the Bill to reflect that a person over 16 years of age is treated as an adult for many legal purposes, including the Adults with Incapacity (Scotland) Act 2000, and therefore subject to overlapping child and adult regimes.

The Law Society’s Rural Affairs and Environmental Law Sub-Committees responded to the Rural Affairs and Islands Committee’s call for views on the Agriculture and Rural Communities (Scotland) Bill.

The Bill was introduced in September 2023 and is currently at Stage 1. The Bill makes changes to the law in relation to providing assistance to farming and rural communities following the UK’s exit from the European Union, and is intended to enable a new framework of support. The Bill also allows the Scottish Government to introduce training requirements for farmers and other workers, in addition to making changes to the regulation of animal identification.

The Committees’ response highlighted that the Bill operates as a framework to provide broad powers intended to facilitate the Scottish Government’s agricultural policy proposals, meaning that much of the detail of the regime will be provided by secondary legislation. While the response recognised the potential benefits that this provides (e.g. in terms of flexibility), it noted the importance of robust consultation being undertaken ahead of the detail of the regime being set by secondary legislation, especially with rural sector stakeholders, as well as there being appropriate parliamentary scrutiny of the subsequent regulations.

The response also noted areas where greater detail and specification would be welcomed, including the provisions relating to the refusal or recovery of support in the public interest.

Attention was drawn to other ongoing and prospective legislative and policy reform within the wider agricultural and environmental legal landscape, highlighting the importance of considering the interplay and overlap between such reforms to ensure a consistent and aligned approach.

The Society issued a briefing ahead of Stage 3 consideration of the Trusts and Succession (Scotland) Bill in the Scottish Parliament on 20 December 2023. The briefing followed on from earlier engagement by the Society at Stages 1 and 2, and focused on the sections of the Bill that had been amended during parliamentary scrutiny as well as amendments tabled ahead of Stage 3.

The briefing reiterated that the Bill – when enacted – will be the most significant development in trust law for over 100 years, and welcomed amendments made to the Bill which addressed concerns raised by the Society at Stage 1. The briefing stressed the continued need for wider reform of succession law, and highlighted the interaction of the Bill with charity and pensions law. The briefing also called for implementation of the legislation to be accompanied by a comprehensive publicity and awareness-raising campaign for trustees, their professional advisers and the wider public interacting with trusts.

The briefing commented on a number of specific sections of the Bill, including those relating to resignation of trustees; unlawful killers as executors; the removal of professional trustees; decision-making by trustees; sale of property by charitable trusts; trustees’ duty to provide information; duration of trust; protectors; alteration of trust purposes; directions relating to trust matters and the estates of deceased persons; expenses of litigation; power to amend jurisdiction in relation to trusts; and the meaning of incapable and related expressions.

The Law Society’s Tax Law Committee has written a joint letter with the Association of Taxation Technicians and ICAS to the Financial Secretary to the Treasury, detailing concerns about current uncertainties regarding the taxation of environmental land management and ecosystem service markets. The letter follows an HM Treasury consultation on these areas, which closed in June 2023. In the Autumn Statement, the UK Government committed to responding to the consultation by Spring 2024.

The letter highlights concerns arising from the current lack of clarity regarding both long and short-term tax issues – with key areas where tax treatment is uncertain including income tax, inheritance tax, VAT, and Stamp Duty Land Tax (and the related Scottish/Welsh equivalents).

The letter also notes that the signatories are keen to engage further with the UK Government on these issues.