Law reform round up February 2016

The Law Society’s Tax Law Committee has responded to the Scottish Parliament call for evidence on a proposed Land and Buildings Transaction Tax supplement on additional residential homes.

The supplement on purchases of additional residential properties, such as buy-to-let properties and second homes, was proposed in the Government’s Draft Budget for 2016-17 and is expected to come into effect from 1 April 2016.

Our full response can be found on our website

The Society’s Criminal Law Committee submitted its briefing or MSPs ahead of the Stage 1 debate on the Abusive Behaviour (Scotland) Bill on 28 January. It highlights that while the Society supports the policy objectives of the bill and would welcome any measure which helps to improve how the justice system responds to abusive behaviour including domestic abuse and sexual harm, it continues to have  reservations as to whether the bill as drafted would help improve the justice system to do so. 

The committee has raised  concerns around proving aggravation of an offence, as set out at section 1, and questioned why existing measures were not adequate and whether or not the increased use of statutory aggravations were improving the criminal justice system. On the ‘revenge pornography’ provisions, as set out at section 2, the committee is of the view that there is a strong argument for modelling the offence on the English legislation, rather than operating different regimes north and south of the border.

Full briefing available on our website

We welcomed the passing of the Apologies (Scotland) Bill at stage 3. The bill had been amended in following concerns raised by our Health and Medical Law Committee to exempt apologies made under the duty of candour procedure as set out in the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill from the Apologies Bill. 

The committee had proposed such an amendment to members of the Justice Committee in November.   Minister for Community Safety and Legal Affairs Paul Wheelhouse MSP tabled the amendment  at December’s Justice Committee meeting at the Scottish Parliament. Both the Apologies Bill and the Health Bill provided for two very different definitions of an apology - meaning the law of unintended consequences may have applied, causing confusion and leading to an unforeseen or unanticipated consequence.  If this had happened, it would have meant that the policy intentions behind both bills may have failed. 

Full details on our website.

We submitted a briefing paper to MSPs ahead of their debate on the Bill on Thursday 21 January 2016. The Bill had its second reading in the House of Lords in December 2015.  Our Immigration and Asylum Committee also responded to the UK Parliament Public Bill Committee’s call for evidence in October 2015. 

Full details on our website.

The Society submitted its views on regulations on legal aid for police custody suspects. The new regulations are due to go before the Scottish Parliament Justice Committee this month. We support the regulations proposals to remove the need for suspects to pay a contribution towards the cost of legal advice they receive while held in custody at police stations. 

The Society believes that the regulations recognise the concerns raised by Lord Bonomy in his 2015 report - that requiring suspects to pay a contribution towards legal advice is likely to dissuade some suspects from taking up their right to legal advice. Removing the requirement to pay a  contribution toward legal fees in police station advice cases would mean that members of the public who needs the services of a solicitor whilst questioned in a police station would get free automatic legal assistance. It also removes the practical difficulties involved in trying to assess finances and collect contributions when the suspect will not have the relevant documentation to hand.

For more information see the website.

The Society has actively engaged with the Scottish Government over the past 12 months to help ensure that new regulations will improve letting agency standards. The Society submitted a number of suggestions which have been taken on board. The regulations now take into account that solicitors are required to have indemnity to practice and will not be required to take out additional cover. They have also been amended to take into account that solicitors are already required to take anti money-laundering measures and conduct checks.

Concerns remain about a potential for conflict of interest if solicitors are subject to two different regulatory regimes. We would also think that further work is needed to direct letting agents as to a course of action when conflict arises. Issues around confidentiality and whether solicitors will also be subject to a fit and proper test for letting agents are still under discussion with the government. Part 4 of the Housing (Scotland) Bill creates a register of letting agents and requires letting agents to register operating as a letting agent without registration is a criminal offence.

Full details here

The Law Society of Scotland welcomed the Scottish Law Commission’s Draft Third Party Rights Bill which seeks to put the common law position on statutory footing and will give third parties to a contract, the statutory right to create an enforceable right. Under the current common Scots law, the parties to a contract can create an enforceable right in favour of a third party, known as jus quaesitum tertio. The Society supports the intention of the Third Party Rights Bill and believe that the legislation will provide clarity and certainty. It is a significant improvement and development on the current common law. The Society has put forward some small suggestions to improve the clarity of the Bill and ensure the scope of the Bill fully achieves the policy intent.

Our response can be found on our website

This month we also submitted our preliminary views on the proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights. Our Director of Law Reform Michael Clancy has been invited to give evidence before the Scottish Parliament’s European and External Relations Committee on 4 February. 

It’s the Society’s view that the HRA has had a positive impact on the development of law and policy both in the UK and in Scotland. We therefore support the retention of the HRA, but we also accept that there is room for improvement of the Act. We believe that the HRA can be improved by the following amendments:-

a) by amending Section 10 to provide a more accountable parliamentary way to amend incompatible legislation in the light of a declaration of incompatibility by the courts;

b) by including Article 13 - right to an effective remedy in Schedule 1;

c) by expanding and clarifying the application of the HRA to private bodies exercising public functions or providing public services.

Full briefing is avaialable on our website