Round the houses

On 26 November 2003 the State Opening of what is likely to be the last full session of the current Parliament took place. Her Majesty announced 23 bills and seven draft bills, many of which will have an impact in Scotland, for example bills on Child Trust Funds, the creation of a new authority on retention of human organs for research, and the Planning and Compulsory Purchase Bill which will substantially abolish Crown immunity under planning law.

The Queen announced some major constitutional reforms. These include a bill to reform the House of Lords, which will remove the remaining 92 hereditary peers and put on a statutory foundation the independent Appointments Commission. It will be remembered that earlier this year the House of Commons considered and rejected a number of options for an elected or appointed second chamber and various combinations, whilst the House of Lords voted overwhelmingly for an appointed chamber.

There will also be legislation to abolish the post of Lord Chancellor, and of high importance to the legal profession, the creation of a Supreme Court for the United Kingdom separate from the House of Lords and the Judicial Committee of the Privy Council. The Supreme Court will be appointed through the medium of its own independent statutory Supreme Court Appointments Commission.

The Society responded to the Department of Constitutional Affairs consultation paper on this issue indicating its support for the creation of a Supreme Court subject, however, to care being taken to ensure that the new structure will not contravene the Treaty of Union.

Bills with an impact

Amongst other legislation which will have an impact in Scotland are bills relating to same-sex partnership; reform of asylum and immigration law; and civil contingencies.

It is expected that the first of these will be subject to a Sewel motion in the Scottish Parliament when the bill is produced next year. The Scottish Parliament’s Equal Opportunities Committee has already been taking evidence on the Scottish Executive’s consultation on this matter. The DTI’s Women and Equality Unit ran a similar consultation for England and Wales, also touching on reserved issues.

The Immigration and Asylum Bill, in addition to abolishing the Immigration Appeals Tribunal, seeks to give the Office of the Immigration Services Commissioner further wide-ranging powers in relation to solicitors and immigration practitioners. The Society has made representations to the Home Office and Department for Constitutional Affairs on these matters.

There will also be an Employment Relations Bill dealing with workforce consultation, a Companies Bill to strengthen auditors’ powers, and amendment to the Scotland Act 1998 to remove the link between the number of MSPs in the Scottish Parliament and the number of Scottish MPs at Westminster.

Lastly, the bill on civil contingencies is intended to update both central and local government and police powers in the context of dealing with emergencies.

Some draft bills will also have an impact in Scotland, including the Disabled People’s Rights, to improve the rights of disabled students and employees; Gambling; Euro (Referendum); and a bill to establish a National Identity Card Register.

Changes on the home front

Meanwhile, among the bills currently in progress in the Scottish Parliament those of particular significance to solicitors are Vulnerable Witnesses; Anti-Social Behaviour etc; and Criminal Procedure (Amendment).

The Vulnerable Witnesses Bill, now at stage 2, seeks to extend the categories of witness who will be eligible to give evidence in both civil and criminal cases by using special measures, such as screens and CCTV.  The Society supports the principle of the Bill but has concerns relating to the definition of “vulnerability” (see October Journal, pages 32-33) . The Society will continue to monitor the progress of the Bill.   

The Criminal Procedure Bill seeks to implement some of the recommendations contained in Lord Bonomy’s report, by introducing greater certainty into High Court proceedings, improving communication between Crown and defence and encouraging earlier preparation of cases. The Justice 1 Committee has been designated the lead committee; members of the Society’s Criminal Law Committee were due to give evidence on 3 December.

The Anti-Social Behaviour Bill, introduced on 29 October, is in 13 Parts and deals with a range of issues form the creation of parenting orders to the extension of anti-social behaviour orders to under 16s. The Society’s Criminal Law Committee is currently considering the justice aspects of the Bill and will give evidence to the Justice 2 Committee in January.

The Society gave evidence to the Environment and Rural Development Committee of the Scottish Parliament at the stage 1 deliberations of the Nature Conservation (Scotland) Bill. This seeks to reform the system of establishing sites of special scientific interest (SSSIs) and more effectively tackle wildlife crime. The Society’s main concerns relate to ensuring that those with an interest in any land to be subject to an SSSI order have adequate appeals provisions, compliant with the principles of the European Convention on Human Rights and that the criminal provisions are clearly expressed.

Competition on the EU front

In Europe the most significant issues relating to the legal profession surround competition matters.

On 28 October the Competition DG of the European Commission held a hearing on competition and regulation of liberal professions. The hearing was wide-ranging – covering lawyers, notaries, engineers, pharmacists, accountants and architects – and those intervening included academics, professionals, representatives of consumer organisations and competition authorities. There was much concern about the sufficiency of the Commission’s research into professional rules, which largely comprises one economic report covering some jurisdictions (although not Scotland) and the responses to a questionnaire issued in the spring about the extent of professional rules, their effect and their justification.

Following the meeting, Commissioner Monti indicated that the Commission will be focusing on the issues of restrictive advertising rules, fixed fees and multi-disciplinary practices. The Commission expects most action to be taken by professions themselves reviewing their rules and national competition authorities enforcing EU law in this area. There will be a Commission report issued in the new year indicating the Commission’s stance on these three areas. Mr Monti did rule out the possibility of taking an EU-wide multi-profession approach to regulation and considers that competition between different legal systems with different regulatory regimes is healthy. However, it seems clear that the Commission will take action at least against some of the most restrictive rules.

Michael Clancy, Director, Parliamentary Liaison