Law reform round up April 2017

The Constitutional Law Committee responded to the House of Lords European Union Committee inquiry to consider the political and economic implications of Brexit for the devolved administrations and the devolution settlement as a whole.

Specifically, we addressed the question on the repatriation of powers from the EU to the devolved institutions. We believe that this is a matter of political negotiation between the UK Government and the devolved administrations and it will be necessary for the transfer of powers to take place within a reasonable timescale and for there to be good cooperation and broad consultation with stakeholders. We did, however, highlight areas identified by the Scottish Government which are currently under EU competence which are not specifically reserved under the Scotland Act 1998. We also highlighted research conducted by the Law Societies’ Brussels Office into the EU competences concerning agriculture, fisheries, health cover and higher education.

The committee also responded to the UK Government’s White Paper on the UK’s exit from and new partnership with the EU. The paper sets out the basis for the 12 principles which will guide the government in fulfilling the democratic will of the people of the UK and the approach to forging a new strategic partnership with the EU. In our response we emphasised our concerns with: ensuring stability in the law; the repatriation of powers post-Brexit; securing the rights of EU nationals in the UK and UK nationals in the EU; and delivering a smooth, orderly exit from the EU.

You can read both responses here.

The Family Law Committee responded to the Education and Skills Committee’s short inquiry to take stock of issues in the Children’s Hearings System in Scotland.

We proposed that there would be good reason for including two additional grounds of referral to the Children’s Hearings System. The first new ground of referral would relate to children that are: likely to be subjected to female genital mutilation; likely to be a member of the same household as a person who has been subjected to female genital mutilation; or is likely to have a close connection to a person who has arranged, facilitated or carried out female genital mutilation. The second ground of referral relates to children that have been trafficked into the UK and where special measures are needed to support them.

We also stressed the importance of the involvement of solicitors in the Children’s Hearing System as being essential to ensuring that the hearings are fair tribunals in accordance with the rights under the European Convention on Human Rights and the UN Convention on the Rights of a Child.

You can read our full response here.

The Immigration and Asylum Law Committee responded to the Equalities and Human Rights Committee’s inquiry on the issue of destitution amongst asylum seekers, or those with an insecure immigration status in Scotland.

We are particularly concerned with Home Office’s Fee Waiver Policy for those migrants who cannot afford to make an application to stay in the UK. Although the policy is intended to accommodate the position of destitute migrants, we believe that it is, in practice, creating additional problems for this vulnerable group.

We also noted that there are few immigration and asylum lawyers in Scotland who can assist migrants on a legal aid basis. This causes further issues with those migrants who are unable to source legal representation and who may also have limited English. In this instance, they must apply in terms of complicated guidance which can be difficult to decipher and the Home Office’s guidance appears to restrict caseworkers’ discretion by instructing them generally to not make any further enquiries beyond the evidence submitted by the applicant.

You can read our full response here.

The Health and Medical Law Committee responded to the Scottish Government’s consultation on increasing organ and tissue donation and transplantation.

We noted that there are ‘patterns of evidence’ which suggest that some countries have higher donation rates than others, but while opt-out systems have improved transplant figures in some countries, the same result may not occur elsewhere because of cultural differences and perceptions.

We believe that increased awareness and education has an important role to play in increasing people’s willingness to donate organs. The merits of an opt-out over an opt-in system to increase organ and tissue donation are not clear however, regardless of the system adopted, increasing public support for either system is essential to improving donation rates. Any plan to change existing legislation would have to be accompanied by a large scale education programme on the benefits of organ donation.

We also believe that family members have an important role to play in decision-making on organ donation. In Scotland there is no legislative requirement to consult with the family, however in practice next of kin are normally consulted and they have a potential to veto any decision made by the donor. An international study has shown that where next of kin involvement was sought, their views have a greater and more immediate effect than legislative changes – regardless of the type of organ donation model that had been adopted and whether the views of the potential donor had been expressed or not. It would appear then, that while the views of a potential donor are given priority, family members tend to have the final say on whether donation goes ahead or not.

We also highlighted the issue of decision-making around organ donation, particularly for young people. It’s vital that for anyone considering organ donation after their death, sufficient information is available and, importantly, they have full understanding before making their decision.

You can read our full response here.

The Obligations Committee responded to the Scottish Government’s call for evidence on the Contract (Third Party Rights) (Scotland) Bill.

We support the principles of the Bill and feel that the law on this issue is outdated compared to the approach of other modern legal systems and international instruments which allow for greater flexibility. This is partly because there is no irrevocability requirement and we feel that the current law around irrevocability is confused in itself.

We believe that moving to a statutory footing will allow this requirement to be removed and for the law to be modernised and clarified. Furthermore, the Bill will bring the law in this area into line with other law on unilaterally created rights and therefore improve the consistency of the law at a general level. Codification will also mean all law relating to third party rights in contract is in one place which will improve its accessibility for contracting parties, third parties and their legal advisers.

You can read our full response here.