Law reform update

Protection of Workers (Scotland) Bill

The Criminal Law Committee gave evidence to the Economy, Energy and Tourism Committee in September on this bill, which would make it a new offence for a member of the public to assault a worker in the course of that person’s employment. The Society recognised that workers should be protected, especially where there is an increased risk of assault when working with the public; however, currently courts are entitled to take into account that assaults at common law may be aggravated if they have been committed on a person who is acting within the scope of his or her employment. The Society would support any measure that reduces the risk of any offence being perpetrated against workers in face-to-face contact with the public, but did voice reservations as to whether the creation of a new offence was the most effective way to address the issue.

Patient Rights (Scotland) Bill 

The Mental Health and Disability Subcommittee also gave evidence in September to the Health and Sport Committee on this bill, which makes provision about the rights of patients when receiving health care. The policy intention of the bill is to send out a strong signal that the NHS exists to serve and care for patients, by putting their rights into primary legislation. The Society voiced concerns that the bill does not give a full enough picture of what patient rights are. There are a number of other statutory or common law rights conferred on patients which are either not referred to in the bill, or are alluded to in weaker terms. These run the risk of being overlooked or forgotten if people assume that the bill is where to go for a comprehensive list of their rights.

EU Commission work programme

In September, the Society’s Director of Law Reform, Michael Clancy, and Julia Bateman, head of the UK Law Societies’ Brussels Office, gave evidence before the Justice Committee on the EU Commission’s Work Programme (CWP) for 2010-14. The evidence session was held following a request from the Parliament’s European and External Relations Committee (EERC) to subject committees to look at EU policy and legislative proposals contained in the work programme relating to their areas which could potentially impact on Scotland. Key areas of the evidence presented by the Society included: the action plan implementing the Stockholm Programme, which determines the Commission’s future work in the area of justice; the Common Frame of Reference in the area of EU contract law; private client matters, including wills, succession and family law; and the right to information in criminal proceedings. The Society also raised the issue of how to maximise engagement with the EU institutions on justice matters to ensure that Scotland’s interests – particularly in the devolved areas – are served.

Children’s Hearings (Scotland) Bill

Stage 2 of the Children’s Hearings (Scotland) Bill is under way and a number of amendments recommended by the Society have been debated by the Education, Lifelong Learning and Culture Committee. One such recommendation, which was accepted by the Minister for Children and Early Years, Adam Ingram, and which ties in with the publication of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill on 29 September, is to bring forced marriage under the auspices of the children’s hearings system by including it as a specific ground for referral. The Society’s Family Law Subcommittee will make separate representations on the Forced Marriage Bill. The deadline for completion of stage 2 of the bill is 29 October.

Company and Insolvency Law Committees merge 

The Company and Insolvency Law subcommittees have now merged into one – David Bennett of Gillespie Macandrew and Roy Roxburgh of Maclay Murray and Spens will act as convener and vice convener respectively. The committee held its first meeting on 6 October where it discussed a number of consultations on which it may be responding this autumn, including the Scottish Government’s consultation on s 51 of the Insolvency Act 1986; HMRC, HMT and BIS’s consultation on the modernisation of tax rules for investment companies and of company law rules on distributions by investment companies; and consultation on the implementation of EU Directive 2009/44/EC on settlement finality and financial collateral arrangements.

Consumer Law Subcommittee

The Consumer Law Subcommittee has recently responded to HM Treasury’s consultation on the Consumer Insurance (Disclosure and Representations) Bill. The committee welcomed the improvement and the increased protection afforded to consumers and agreed with the Law Commissions’ recommendations. The committee also responded to BIS’s consultation on Implementation of the Timeshare, Long-term Holiday Product, Resale and Exchange Contracts Directive 2008/122/EC, in which they concluded that there should be criminal sanctions in view of there having been significant abuse and consumer prejudice in this sector in the past, as long as that criminal sanction was in accordance with the terms of the directive.

Scottish tribunal reform

The Society’s working party on tribunals responded to the Administrative Justice and Tribunals Council’s discussion paper on tribunal reform in Scotland in September. At a debate held in the Scottish Parliament on 30 September, Justice Secretary Kenny MacAskill announced that the Scottish Government will establish a Scottish Tribunal Service in December 2010. Whilst the Society is generally supportive of this service, it will need to see more detail before it can make further comment.