Public policy highlights: June 2023

Independent healthcare

The Health & Medical Law Subcommittee responded to the Scottish Government’s consultation on amendments to the regulation of independent healthcare. This follows a previous consultation on the regulation of non-surgical cosmetic procedures, and looks at whether further reform is needed as the independent healthcare landscape in Scotland continues to change.

The response supported further regulation of independent healthcare services to address gaps with regard to services provided by pharmacists and pharmacy technicians outwith the terms of an NHS contract, and independent medical agencies including online-only services. It highlighted potential risks for patients and consumers, particularly children, and welcomed moves to minimise this risk. It agreed that regulation by Healthcare Improvement Scotland would be an appropriate way to address the regulatory gap, and called for its sufficient funding and resourcing to extend its statutory role.

It is also important to take a harmonised approach to regulation where appropriate with the other nations in the UK, to limit any regulatory divergence, “medical tourism” or pharmacy shopping across the four nations, and any consequential risks for patient and consumer safety.

Read more on the Society’s Health and medical law page.

Charities Bill

The Society issued a briefing ahead of stage 1 consideration of the Charities (Regulation and Administration) (Scotland) Bill in the Scottish Parliament. It welcomed the bill and noted that the changes proposed were generally sensible and proportionate. However, it also expressed disappointment that the bill does not deliver more comprehensive reform, calling for further clarification on the scope and timescale for a promised wider review of charity law. Ahead of stage 2 consideration, the Society issued a suggested amendment seeking clarification on the timescale for the wider review.

The briefing also highlighted support for a public awareness-raising and engagement campaign prior to commencement, to ensure that charities and charity trustees are fully aware of their obligations and can manage their affairs accordingly.

A number of comments were made on the detail of the bill, including proposals relating to disqualification from being a charity trustee or senior manager, appointment of interim trustees, mergers, and connection to Scotland. 

Read more on the Society's page on the bill.

LBTT: green freeports 

The Society responded to the Scottish Government consultation on proposed legislative amendments to the Land and Buildings Transaction Tax (Scotland) Act 2013. The proposals include the addition of a new sched 16D, which will provide a LBTT relief for qualifying non-residential transactions within a designated green freeport tax site. 

The response generally agreed in principle with the proposals. However, it raised concerns that as currently drafted, they could prejudice the availability of relief in the case of a developer who buys land to be developed through a forward funding structure, where the developer sells the land to an investor before development starts, and the investor pays for the development in stages as construction takes place. Such a deal structure is commonly used in commercial property development.

It highlighted the risk that, in such a case, relief will not be available for the purchase by the developer (or clawback could operate if a developer initially qualified for LBTT relief but then decided to proceed by way of a forward funding structure), because it is taken to be holding the land for resale without development. 

In addition to recommending that the drafting clarifies these points, the response also recommended that explicit guidance is published on the interpretation and scope of “develop” in this context – in particular, that it should confirm that works carried out by the developer under the forward funding structure (while it has title to the land), including undertaking site investigations, obtaining planning permission, procuring tenants, signing agreements for lease, and tendering for construction works, constitute “development” and make it eligible for relief, even though actual construction works have not yet commenced. A lack of clarity on these points could inhibit significant development projects on green freeport tax sites, and excluding the developer from being eligible for the relief would undermine the policy aim of promoting long-term investment in underdeveloped tax sites with economic potential and providing LBTT relief for development-related activity.

Find out more at the Society’s Tax law page.