Public policy highlights

The Society’s policy committees analyse and respond to proposed changes in the law. Key areas from the last few weeks are highlighted below. For more information see the Research and Policy section of the Society's website.

Administrative justice

The Society has launched a consultation calling for views from the legal profession, stakeholders across the justice system and members of the public on proposals for a principles-based approach to administrative justice in Scotland. See the feature in this issue.

Mental health law review

The Society welcomed the publication of the Scottish Mental Health Law Review final report. Having engaged extensively with the review, it was particularly pleased to note the report’s alignment with and direct link to its Advance Choices paper.

The report recommends both that reform of the Adults with Incapacity Act should be a priority for Scottish Government, and that a legislative solution to potentially unlawful deprivations of liberty should be taken forward as a short-term recommendation. The Society has previously highlighted the need for urgent reform in both these areas, and has added its voice to the calls for the Government to address these issues in early course.

It also encourages the Government to consider the recommendations of the whole report and move swiftly to the next phase of law reform, for the benefit of patients and their families, carers, doctors, lawyers and all those affected by the legislation. In the meantime the Society will carefully consider the report’s content and recommendations.

National Care Service

The National Care Service Working Group submitted written evidence in response to calls for views from Scottish Parliament committees on the National Care Service (Scotland) Bill. It highlighted the current complex legislative landscape for social care, and that a further layer of complexity should be avoided. The bill’s success in achieving its purpose of improving quality and consistency of social work and social care services would depend on details of implementation, which were not yet available. The bill could be strengthened in areas including rights and duties, consultation and co-design, conflicts of interest, transfer of staff and of property and liabilities, health and social care information, procurement and entrustment, intervention powers, and interactions with existing statutory provisions and definitions.

It was further suggested that high level issues based on fundamental rights and existing regulatory frameworks should be addressed in primary rather than secondary legislation, to ensure full parliamentary scrutiny; this was not inconsistent with ensuring responsiveness and adaptability via secondary legislation. The submission welcomed the involvement of people who access and deliver social care in a co-design process, but highlighted that scrutinising the bill in advance of this limited the potential for effective scrutiny. 

Drugs death prevention

Scottish Labour MSP Paul Sweeney launched the Proposed Drugs Death Prevention (Scotland) Bill in May 2022. It sought to enable overdose prevention centres (“OPCs”) in Scotland within a licensing framework, and create a new body to oversee drug policy tasked with improving public health, and reducing drug use and drug related deaths.

The Criminal Law, Licensing Law and Health & Medical Law Committees considered and responded to the proposed bill. The response acknowledged that the issues surrounding drug misuse are complex and require a multi-faceted approach including education, healthcare, and justice considerations. Further detail and consideration would be required as the proposals state that the operation of OPCs would rely on the Lord Advocate’s prosecutorial discretion. The proposals would require amendment to the Misuse of Drugs Act 1971, a reserved matter, so unless the UK Parliament legislates to allow OPCs in Scotland, concerns remain that criminal offences may occur in their provision.

Bail and release from custody

The Bail and Release from Custody (Scotland) Bill was introduced in June. Part 1 relates to decisions about granting bail and aims to ensure that as far as possible, the use of custody for remand is a last resort; part 2 relates to arrangements for the release of some prisoners and the support provided to those leaving prison. It aims to give a greater focus on provision of rehabilitation and reintegration.

Responding, the Criminal Law Committee welcomed the proposals as containing some significant improvements to the current arrangements, in particular the provision of written reasons for refusing bail, albeit this would create additional time and pressure constraints on custody courts. It also welcomed proposals in relation to electronic monitoring of bail, and moves to support individuals on release by “throughcare” services.

See the website for more about the Policy Team’s work with its network of volunteers to influence the law and policy.

The Society recently responded to the Scottish Government’s consultation on proposals for a new Land Reform Bill, Land Reform in a Net Zero Nation. The consultation considered a number of potentially significant proposals in relation to the use of and practices around land ownership in Scotland, with a focus on diversifying land ownership and strengthening the role of communities.

While the ambitions to diversify land ownership, encourage community engagement and increase transparency in land ownership were broadly supported, the response noted that it is important to recognise the particular context of land ownership in Scotland, including the reasons for Scotland’s current pattern of land ownership; challenges around the use, quality and value of land; and relevant economic factors such as economies of scale and the nature and availability of public funding (both historically and plans for the future). The multiplicity of rights which can be held in the land as a form of diversification was highlighted, including agricultural and smallholding tenancies, crofting rights, common grazing rights, and shared rights in hill grazing.

A risk was noted that the additional burdens created by many of the proposals act to discourage economic investment in land in Scotland. It is important that ambitions to diversify ownership of land and enhance community engagement are balanced with other factors, such as climate and biodiversity goals, food and energy security, and economic stability and resilience, particularly post-COVID.

A key proposal in the consultation is the creation of a public interest test for the transfer of large scale land holdings. The Society’s response stressed that careful consideration of this proposal is needed: at this stage, there is insufficient detail provided as to how such a test might be delivered. It is important to ensure compliance with the European Convention on Human Rights, and a number of practicalities require thought, including the interpretation of “public interest”, the process and length of time for a determination, the details of an appeal process, and the position of lenders.

The response agreed, in principle, with the proposal to create a duty on large-scale landowners to publish management plans in the interests of transparency and public interest and engagement, while noting concerns about the proposed eligibility requirement that all land, regardless of size, must be registered in the Land Register of Scotland for landowners to receive public funding for land-based activity, highlighting that the costs and efforts required for voluntary registration would be prohibitive for many landowners and may have the effect of negating the value of available funding.

On the criteria for large-scale landholdings, it noted that “one size does not fit all” in terms of classifying landholdings. The benefits, in principle, of creating a duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols were recognised; however, this could be difficult to translate into law which is accessible, intelligible, clear and consistent.

Alison McNab, policy manager, The Law Society of Scotland