Public policy highlights

The Society’s policy committees have had a busy month analysing and responding to proposed changes in the law. Key areas are highlighted below. For more information see www.lawscot.org.uk/research-and-policy/ 

Redundancy: women and new parents

The Employment and Equalities Law Subcommittees responded to the UK Government’s Department for Business, Energy & Industrial Strategy consultation on pregnancy and maternity discrimination.

Following a return to work, new parents may be disadvantaged in a redundancy exercise when they have been out of the workplace for up to one year. They may also be vulnerable to assumptions being made about their commitment to the job and future performance due to childcare responsibilities. Extending redundancy protection for six months after return to work would strike the right balance between the need to address potential disadvantages to new parents, and the need to provide flexibility to employers and respect for other employees facing redundancy. It would also help bring clarity and consistency to the legal position.

Current redundancy protections should also be extended to parents taking adoption leave and shared parental leave. All parents should have the same protection in connection with leave associated with the birth or arrival of a child. In these cases, the six-month protection period should start when the period of maternity leave, adoption leave, or shared parental leave ends.

Defamation

The Obligations Law Subcommittee responded to the Scottish Government’s consultation on defamation in Scots law.

Further evidence of vexatious litigation should be provided if a “serious harm” test is to be introduced, as the committee is not aware that there is currently a problem in Scotland. There is a balance to be found between the right of freedom of expression, as found in ECHR article 10, and the right of protection of individual reputation. From an access to justice perspective, introducing a statutory threshold could deter legitimate claims, and there may be practical challenges around preliminary hearings to assess whether significant harm has occurred.

Many profit-making businesses are small to medium-sized enterprises and defamatory statements could generate significant economic harm and reputational damage. However, in the case of non-financial loss, the committee recognises that introducing a serious harm threshold could help protect freedom of expression and mitigate against the potential chilling effect from a well-resourced legal person threatening legal action.

Charity law

The Charity Law Subcommittee responded to the Scottish Government’s consultation on potential improvements to the charity regulation framework in Scotland, in light of proposals by the Scottish Charity Regulator OSCR.

The legislation regulating charities is now almost 15 years old, and merits a comprehensive review. The committee welcomes the commitment to reviewing the legislation, but strongly believes that there are many other areas in the legislation, over and above the specific points in the consultation, that should be considered. It would be a badly missed opportunity not to do so.

Charity regulation needs to command the confidence of the general public, as well as those who serve on charity boards, volunteer and otherwise engage with charities. The majority of charities in Scotland have annual incomes of less than £25,000, so it is critically important that regulation is proportionate and carefully focused. Reforms to Scottish Charitable Incorporated Organisations (SCIOs), particularly to smooth the path for existing charities wishing to convert to this form, would significantly benefit the sector.

Reform of trustee remuneration, and specific obligations regarding the reporting of notifiable events (where there has been a serious incident affecting a charity), would clarify the duties on trustees and promote confidence in the sector as a whole.

Post-mortems: defence time limit

The Criminal Law Committee responded to the proposal lodged by Gil Paterson MSP for a bill to make the right of defence counsel for a person accused of homicide to instruct a post-mortem examination of the deceased subject to an extendable time limit in order to minimise delays and uncertainty for victims’ families.

There should be enough time for a defence solicitor to decide that a post-mortem is required and to arrange for it to be undertaken. The committee suggested a time limit that commences at the date of the accused’s first appearance in court.