Making the law work better

Solicitors are in a privileged position in seeing the practical effects of the law. It means we are ideally positioned to be able to say what is working and what could be better – and is the reason behind a change in the Law Society of Scotland’s approach to its law reform work, with a shift of focus towards public policy, including consideration of how we can best influence the creation of a fairer and more just society.

Our dual role means we have a statutory duty to work in the interest of Scottish solicitors, our members, but we also have a duty to work in the interests of the public in relation to the legal profession. To us that means more than regulation: it means directing the breadth of the knowledge and expertise within the profession towards ensuring the laws governing all of us are “good law” – clear, workable and without unintended consequences.

The Society will continue to play a role in scrutinising new legislation emanating from both Holyrood and Westminster, but taking a more proactive approach means we can make the most of the expertise available to us and bring our unique perspective on how law works in practice. The diversity and depth of our committee members’ knowledge is enormous, and our members' willingness to volunteer their time and share their insight means we have access to an incredibly valuable resource – and where the individual solicitor may not be able to draw attention to those areas of the law which are not working as well as they should, we as their professional body can pick up the baton and work both to raise awareness and come up with solutions.

Streamlined and improved

This change in approach led to the creation of a new Public Policy Committee in 2017, which succeeded the Society’s Law Reform Committee. In some respects we will maintain a similar role and we will continue to oversee the work of the 25 policy subcommittees, which range from access to justice to competition law, privacy law to rural affairs. In addition to our oversight role, we have set up a working group to examine the ramifications of Brexit and are also working in close collaboration with the Society’s other committees including our Access to Justice, Civil Justice and Legal Aid Committees and those in Education, Training & Qualifications and Regulation.

Looking ahead, we also plan to make more information available to our members on the work of our many policy subcommittees and to encourage communities of interest to grow, strengthening our links to practising solicitors in specialist fields and tapping into their expertise.

Since the formation of the Public Policy Committee, we have introduced a number of new processes to improve our oversight function and we have streamlined existing ones to help provide consistency. In our first year we also spent time consulting with the Society’s committees and the wider profession, prior to agreeing three areas of focus for the next 12 months. These are:

Access to medical records – to provide a framework to integrate medical records across primary, secondary, and private health and social care providers.

Currently there is little or no integration between the health and social care sectors in a manner which supports appropriate sharing and recording of patient information. Many health and social care professionals do not have confidence in the legality of data sharing, and this would allow, within a patients’ rights framework, successful integration across all health and social care providers, enabling professionals throughout the sector to access and share health records to improve patient care.

Equalities & Human Rights Ombuds – to analyse the existing ombuds and dispute resolution framework as it applies to equalities and human rights disputes in Scotland, and consider the case for the establishment of an Equalities & Human Rights Ombuds.

There is a lack of resource and expertise within the existing courts and legal aid systems to deal with equalities cases appropriately. Our aim would be to provide a model that would enhance access to justice in relation to both equalities and human rights across Scotland and ultimately lead to more effective handling of these disputes and improve best practice and accountability.

Common property – to present a legislative solution in line with the project to complete the Land Register by 2024, to ensure certainty of ownership in relation to common parts.

This is particularly relevant in the context of common property in residential and other developments where plans were not settled prior to the building process. At the point that the titles were sold off it was not therefore possible to map the common parts, so registration did not perfect the conveyance as was anticipated by both developer and purchaser. The aim is to create a solution which will give effect to the intentions of contracting parties in these original conveyances.

An invitation

We are already making good progress. We have a timetable in place for each of our three new projects and have established working groups who will examine these areas in detail, identify the key challenges and bring forward well thought-out proposals and recommendations offering practical solutions to existing problems – in effect they will provide ways to make laws work better for society.

There will be regular updates on our work as it progresses, and I anticipate that 2018 will be another busy year as our first three projects come to fruition and we consider what is next on our agenda. I would encourage solicitors who are interested in contributing to our public policy work to get in touch and to look out for our next consultation period on future projects. Contact us at policy@lawscot.org.uk