Public policy highlights

It has been an extremely busy month for the Society’s policy committees. First, Company & Insolvency Law Committee member Dr Alisdair MacPherson gave evidence to the Economy & Fair Work Committee on the Bankruptcy and Diligence (Scotland) Bill. A week later, the secretary to the Rural Affairs Committee gave evidence to the Rural Affairs & Islands Committee on the Welfare of Dogs (Scotland) Bill.

Programme for Government

The Society welcomed the focus on the justice sector in the Scottish Government’s 2023-24 Programme for Government. The First Minister announced legislative changes aimed at embedding international human rights in Scotland and modernising outdated laws around judicial factors. These add to the bills already before the Parliament, including the Regulation of Legal Services Bill and the Victims, Witnesses, and Justice Reform Bill.

However, the Society was “bitterly disappointed” to see another year where Scotland’s legal aid sector will go without the lasting reforms needed to protect access to justice for the most vulnerable.

Find out more on the Society’s news page (5 September).

Unregulated legal services

The Society responded to the Competition & Markets Authority investigation into unregulated legal services, including will writing, online divorce, and prepaid probate services. It expressed concerns that consumers using unregulated legal services may suffer financial loss if the service provider breaches consumer protection legislation. Further, the relevant law differs significantly between Scotland and England & Wales, and unregulated providers are not always well placed to deal with these variances.

The Society suggested that all those providing legal services direct to the consumer must be regulated, to strengthen consumer protections and enhance consumer confidence. It has advocated for many years for such regulation, including in its recent written evidence on the Regulation of Legal Services (Scotland) Bill, the protections in which, the Society considers, do not go far enough.

Find out more on the Society’s news page (15 September).

Trusts and Succession Bill

The Trust & Succession Law Subcommittee issued a briefing to MSPs ahead of the stage 1 debate on the Trusts and Succession (Scotland) Bill, reiterating the detailed comments provided during stage 1 scrutiny of the bill.

The briefing largely welcomed the recommendations in the stage 1 report, including on further work to address wider changes to trust and succession law, and the report’s calls for further clarification from the Scottish Government.

In the context of the bill, the Society also responded to a targeted consultation on unlawful killers as executors to victims’ estates. It supported clarifying the law in this area in statute, highlighting that a careful balance must be struck between the presumption of innocence and the practical requirements of administering an estate without undue delay. Allowing the sheriff the discretion to refuse appointment where the person
has been convicted or is subject to a live prosecution would strike this balance.

Find out more at the Society’s page on the bill.

Justice Reform Bill

The Criminal Law Committee responded to the Parliament’s Criminal Justice Committee’s call for views on the Victims, Witnesses, and Justice Reform (Scotland) Bill.

The response broadly welcomed many provisions which have the potential to impact positively on the public perception of the criminal justice system and the experiences of victims and witnesses, including the proposed Victims and Witnesses Commissioner for Scotland, the principle of trauma-informed practice and special measures in civil cases, and independent legal representation for complainers when s 275 of the Criminal Procedure (Scotland) Act 1995 operates, as well as an automatic right to anonymity for complainers of sexual offences.

It did however highlight significant concerns regarding the provisions relating to the reduced number of jurors, the creation of the Sexual Offences Court, and the single judge pilot for rape and attempted rape cases. It also reiterated the Society’s opposition to abolition of the not proven verdict, on the basis that the availability of the verdict provides an important safeguard against wrongful convictions. Should Scotland move to a two verdict system and a 12 person jury, jury unanimity should be required in order to convict.

Find out more at the Society’s page on the bill.

Visitor Levy Bill

The Tax Law Subcommittee responded to the Local Government, Housing & Planning Committee’s call for views on the Visitor Levy (Scotland) Bill.

Currently at stage 1, the bill sets out the framework for local authorities to have a discretionary power to charge a visitor levy on overnight stays in accommodation such as a hotel, hostel, or bed and breakfast. Each authority would be able to decide whether it wanted to introduce a levy, and the level of any charge.

The response noted that the levy should be consistent with the Scottish Government’s overall approach to taxation, embedded in the principles of certainty, convenience, efficiency, and proportionality to the ability to pay. It welcomed the consultation requirements prior to a levy scheme being introduced or changed, and stressed the need for wide publicity in advance (both nationally and within the local authority area), to ensure awareness among providers and accommodation users.

There are areas of the bill where greater clarity or guidance would be welcomed – for example on the scope of the definitions of “chargeable transaction” and “overnight accommodation”, including examples where relevant.

A number of sections contain powers to introduce subordinate legislation relating to the scope and operation of levy schemes. Given the importance of any provision in relation to exemptions and rebates, there may be merit in including these on the face of the bill.

Find out more at the Society’s page on the bill.

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