Society shapes the changes

Adult Support and Protection (Scotland) Act 2007

The Adult Support and Protection (Scotland) Act 2007 received Royal Assent on 21 March, marking the culmination of a trio of Scottish statutes designed to protect vulnerable adults, beginning with the Adults with Incapacity (Scotland) Act 2000 and then the Mental Health (Care and Treatment) (Scotland) Act 2003. Most of the provisions in the 2007 Act are expected to be in force towards the end of this year, although an important provision, inserting a new section in the Social Work (Scotland) Act 1968, came into force on 21 March.

As with the earlier legislation, the Society was closely involved, via the Mental Health and Disability Subcommittee, throughout both the consultation and drafting stages of the 2007 Act. The Society provided substantial written evidence on the bill, as well as meeting officials and accepting an invitation to provide oral evidence to the Health Committee of the Scottish Parliament, during the course of 2006. As a consequence, the Act was considerably amended and, it is widely accepted, is a great improvement on the bill.

The Society submitted a number of amendments at both stage 2 and stage 3 of the consideration of the bill by the Scottish Parliament, many of which were subsequently adopted. Amongst these were amendments concerning the consent of the “adult at risk” to orders made to do with their welfare. There were also changes to provisions amending the 2000 Act. For example, the Society successfully argued that the procedure of revocation of a welfare power of attorney requires similar protections to those in relation to granting the power. Part 3 of the 2000 Act, dealing with access to funds, has been entirely replaced. The Parliament accepted the Society’s suggestion of a simplified renewal procedure for applications to the Public Guardian relating to access. This is now incorporated in the amended Part 6.

The Society is very grateful both to members of the Scottish Executive and the Scottish Parliament concerned with the bill for their consistent openness and helpful liaison throughout the development of the legislation.

A more detailed article on the 2007 Act, by Adrian Ward, convener of the Society’s Mental Health and Disability Subcommittee, will appear in the June edition of the Journal.

Judiciary (Scotland) Bill

Earlier this year, the Scottish Executive released plans for a Judiciary (Scotland) Bill. The bill has the potential to substantially change the relationship between the judiciary and the government, and the Executive claims that the proposals will strengthen the independence of the judiciary. Amongst these proposals is the suggestion to place the Judicial Appointments Board on a statutory basis and to modernise the disciplinary procedures for sheriffs. The plans go further, however, and the discussion paper accompanying the draft bill explores the idea that the role of the Lord President will be changed to allow for playing a greater part in the governance of the Scottish Court Service.

The Law Society of Scotland has formed a working group to consider the proposals, under the convenership of Alan McCreadie, Deputy Director of Law Reform. The group boasts considerable and varied expertise across professional practice, civil procedure, and criminal law, and includes Professor Pamela Ferguson of Dundee University, an expert in criminal law and procedure. The group is meeting regularly to develop the Society’s views further to the May 2006 response to the consultation entitled “Strengthening Judicial Independence in a Modern Scotland: a consultation on the unification, appointment, removal and management of Scotland’s judiciary” (available in the Public Information section on the Society’s website).

The working group intends to make representations to the Executive in due course and to strongly support the independence of the judiciary, encouraging provisions in the bill enforcing this aim. The group has so far identified a number of possible contradictions in the draft bill relating to judicial independence. The group believe that parliamentary committees, MSPs and the Scottish Executive should not be in a position to interfere with judicial independence and that any guidance should be followed optionally.

The proposed changes in the bill to the role of the Lord President have also given rise to areas of concern for the group. In their view, there is inadequate consideration given to the administrative and organisational skills required in the proposals by a Lord President taking on broad and involved administrative functions. The worry is that the role would no longer fully utilise the advanced legal skills and experience of any lawyer likely to be appointed to this position. The group will suggest that the Executive consider introducing a role of chief executive or judicial assistant. In short, judges should be left to judge.

Sam Condry, Law Reform Department