Public policy highlights

Influencing the law and policy in 2017

The Society’s policy committees have had another busy year analysing and responding to proposed changes in the law. Since January they have responded to 96 consultations, 19 bills from Holyrood and Westminster, and examined the potential impact of Brexit on members and the wider public. They do this in order to positively influence the creation of a fairer and more just society through active engagement with the Scottish and UK Governments, Parliaments, wider stakeholders and the membership.

For more information see www.lawscot.org.uk/research-and-policy/ 

Brexit 

The Society submitted comments and briefings following the legal challenge and on the EU (Notification of Withdrawal) Bill. After the triggering of article 50 in March it highlighted negotiation priorities for the legal profession and submitted detailed responses to both the Brexit and Great Repeal Bill white papers. 

After the introduction of the EU (Withdrawal) Bill it raised particular concerns with both Houses of Parliament about the use of Henry VIII powers and the potential impact of Brexit on the devolution settlement and the court structure. Director of law reform Michael Clancy also gave evidence to a number of Scottish Parliament committees. 

The Society has continued to engage with both Parliaments as the bill progresses. A number of its amendments were tabled by opposition parties at committee stage. 

Society committees have also been examining their remits in relation to EU withdrawal. The Health & Medical Law Committee issued a paper on the potential impact on the provision of health and social care in Scotland. The Competition Committee, Immigration & Asylum Committee and Banking, Company & Insolvency Law Committee have submitted responses to different consultations and inquiries. The Society also submitted a response to the Department for International Trade’s paper on preparing for future UK trade policy.

Domestic Abuse (Scotland) Bill

The Domestic Abuse (Scotland) Bill was introduced in March. Having responded in January to a consultation on the proposed domestic abuse offence, the Society submitted evidence on the bill to the Justice Committee, raising previous concerns on the practical issues relating to prosecution of the proposed offence, in particular possible difficulties in obtaining sufficient evidence. It also questioned whether the bill should be limited to partners or ex-partners, as controlling behaviour is not limited to these relationships. The Society has continued to engage on the bill, currently at stage 2.

Gender representation

In March, the Society responded to the Scottish Government’s consultation on the practical application of the draft Gender Representation on Public Boards (Scotland) Bill. Many high-quality responses were submitted when the Government consulted on this subject in 2014 and the Society suggested those responses should be revisited.

The bill was introduced in June and is currently at stage 1. The Society has given evidence to the Equalities & Human Rights Committee suggesting that a transparent application process should be required for board positions to ensure confidence that appointees are appropriately qualified; and that voluntary targets are unlikely to be effective in achieving gender balance. It has highlighted the large numbers of female solicitors who may be suited to board membership.

Civil Litigation (Expenses etc) Bill

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill was introduced in June and is still at stage 1. In a submission to the Justice Committee in August, the Society stated that while the bill has the potential to significantly increase access to justice, it is difficult to gauge the full impact as many details will come at a later stage, and called for greater certainty.

The Society raised concerns that the bill makes no reference to the Contingent Legal Aid Fund proposed in Sheriff Principal Taylor’s report; and with the wording of s 10 (financial assistance), the drafting of which may have unintended consequences. It agreed with the “opt in” proposals for group proceedings under s 17, which should work for solicitors in practice.

Children (Equal Protection from Assault)

In August, the Society responded to John Finnie’s consultation on the proposed Children (Equal Protection from Assault) (Scotland) Bill. The bill proposes to offer children the same legal protection from assault as adults, removing the common law defence of “reasonable chastisement”. The Society believes this would bring greater clarity in the law and help to bring Scotland in line with its international obligations. 

The bill has been taken forward by the Scottish Government in the programme for 2017-18 and the Society will continue to engage with the Scottish Parliament.