Twin-tracking law reform

Reforms to Scots law once again figured prominently in the Queen’s Speech at Westminster on 15 November.

In total, 25 bills and four draft bills were outlined. Much of the detail related to other parts of the UK, although key proposals are relevant to the profession and public in Scotland.

The Society’s Director of Law Reform, Michael Clancy, said: “It was a very busy Queen’s Speech with a wide range of measures. It emphasises that Scots law is not simply being made at Holyrood – a significant body of legislation is also being generated at Westminster.”

Below is a summary of some of the new bills and the response of the Law Reform Department.

Legal Services Bill

Concerns about provisions in the Legal Services Bill, which applies to England & Wales, have been highlighted by the Society regularly because of potential “wash through” to Scotland. They remain undiminished. The department responded to the consultation with a warning that the proposals could undermine the independence and core principles of the profession.

The introduction of alternative business structures (ABSs) could allow the arrival by the back door of so-called Tesco law, which would allow non-solicitors to own solicitors’ firms. The “fitness to own test” for ABSs would be lower than that currently required for legal firms, increasing the risk of unscrupulous owners of legal firms.

Also, the proposals may have a knock-on effect on access to justice, by squeezing smaller or rural firms.

Child Support Bill

There was broad support for the proposal to abolish the much- criticised Child Support Agency (CSA) and replace it with a smaller organisation using simpler methods of collecting child maintenance.

However, it emerged during Sir David Henshaw’s review of the CSA – which did not take evidence from the Society – that certain aspects of the Scottish legal system had not been taken into account. The Law Reform Department, along with the Family Law Subcommittee, expressed concern that the new set-up would adopt procedures from England that were inappropriate for Scotland, in particular the use of consent orders. Thankfully, there has since been an acknowledgment of the need to respond to the different characteristics of the Scottish system.

It was also highlighted that matters relating to the Scottish courts, such as enforcement of maintenance, were devolved issues.

Consumers, Estate Agents and Redress Bill

The main focus of the bill is consumer protection and redress. Among its provisions, it seeks to establish a new National Consumer Council and to augment Consumer Direct, the online and telephone advice service.

The bill also requires all UK estate agents to belong to a redress scheme for residential property transactions; but as with the Estate Agents Act 1979, these provisions do not affect Scottish solicitors acting as estate agents.

As the scope of the majority of the bill is UK-wide, the Society’s Consumer Law Subcommittee will seek to ensure that the interests of Scottish consumers are fairly represented throughout.

Criminal Law Bills

As ever, there was a particular focus on proposed criminal law legislation. A good deal of the Law Reform Department’s workload has involved the Scottish Parliament’s legislative programme, but a number of matters which may require attention have arisen as a result of the Queen’s Speech.

Organised Crime Bill

The Organised Crime Bill contains provisions that relate to both reserved and devolved matters. Of most interest to the department and the Criminal Law Committee is the proposal for new serious crime prevention orders, which would impose financial and other restrictions on leading criminal figures. Companies thought to be complicit in serious crime would also be targeted.

The Society has already pointed out that this legislation could breach the European Convention on Human Rights, as those subject to serious crime prevention orders could be linked to criminal activity without proof of any criminality. The Society will continue to argue that there are aspects of the bill which should be addressed.

Corporate Manslaughter and Corporate Homicide Bill

The debate about introducing new offences of corporate homicide/ manslaughter has continued at both Holyrood and Westminster, following several high-profile cases.

The bill will seek to make it easier to prosecute companies for this specific offence by looking at collective management responsibility rather than individual failings.

The Home Office conducted a consultation exercise south of the border, and in Scotland an expert group – which included the Society’s Michael Clancy – reported to Scottish Ministers. The Scottish Executive and the Home Office agreed that the legislation on this should be introduced by Westminster and that a UK bill should apply.

    Craig Watson is a freelance writer specialising in legal affairs