Law reform roundup

UK Bill of Rights

On 7 December, the Society hosted a round-table discussion with the UK Commission on a Bill of Rights. As well as members of the Commission, participants included senior Scottish legal figures and academics.

Established by the UK Government, the independent Commission is meeting with stakeholders from the devolved areas of the UK as part of a wide consultation exercise.

Members noted their gratitude to the Society for its response to the call for evidence and for organising the meeting. The Commission emphasised that it is still very much “in listening mode”, and has not yet begun to make any decisions on recommendations.

The Commission was interested in discussing the Society’s position on clause 17 of the Scotland Bill, which seeks to remove the Lord Advocate from the devolution minute procedure and set in place a procedure to challenge acts of the Lord Advocate on the basis of “compatibility” with any of the Convention rights or with EU law. The Society’s view is that this will result in less robust protection of individual rights in Scotland.

The key issues of the role of the Scotland Act, Human Rights Act, and the Supreme Court in relation to human rights in Scotland were discussed, including the difficulties that have been faced in encouraging the Scottish legal and court systems to think of the European rights as Scottish rights.

However, it was also emphasised that having a Scottish Parliament subject to the restraints of the Scotland Act and therefore unable to legislate incompatibly with certain human rights was not a controversial issue for the people of Scotland.

Other topics for discussion included the Scottish political environment and the potential reaction to different types of proposal regarding a British Bill of Rights; and the difficulties with applying a concept of “Britishness” in Scotland.

The Commission sought opinions on the feasibility of introducing protections for new types of right, such as a right to administrative justice or a right to equal treatment under law, and how these rights would work in the Scottish context.

Land registration

The Land Registration etc (Scotland) Bill, introduced on 1 December, is being considered by a working group comprising members of the Society’s Property Law and Criminal Law Committees and the Banking Law Subcommittee.

The bill comprehensively reforms land registration, implementing recommendations made by the Scottish Law Commission. It is widely acknowledged that the current system is in need of reform; however, the Society has concerns about the introduction of a new criminal offence in relation to giving false or misleading information in applications for registration. The Society has been called to give oral evidence before the Parliament’s Economy, Enterprise and Tourism Committee in early January.

Children and young people

The Family Law Subcommittee responded to the Scottish Government’s consultation on the proposed Rights of Children and Young People Bill, which would oblige Scottish ministers to have “due regard” for the UN Convention on the Rights of the Child when carrying out their duties. The committee expressed doubts about both the necessity for and the competence of the proposed bill, as ministers are already obliged to “respect and ensure” the rights of the child (a stronger obligation), since the UK has ratified the Convention.

Response to Alcohol (Minimum Pricing) Bill

In its response to the call for evidence on the Alcohol (Minimum Pricing) (Scotland) Bill, which proposes to establish a minimum sale price based on a unit of alcohol, the Society noted that while the imposition of a minimum price is within the legislative competence of the Scottish Parliament, compatibility with EU Duty Directives, in particular the Alcohol Excise Duties Directives (92/83/EEC and 92/84/EEC), and articles 34 and 36 of the Treaty on the Functioning of the European Union, must be taken into account.