Law reform round up February 2017

The Constitutional Law Sub-Committee responded to the Scottish Government’s consultation on a Draft Referendum Bill. The Bill was published for consultation in order to be ready for introduction should the Scottish Government conclude that seeking the view of the Scottish people on independence is the best or only way to protect Scotland’s interests in the wake of the EU Referendum.

The Scottish Government has acknowledged that if it decides to formally introduce the Bill to Parliament it would expect a Section 30 Order be sought and agreed as in 2014. We believe that any Section 30 Order that might be agreed between the UK and Scottish Government should be in similar terms to Edinburgh Agreement and an Order in Council under Section 30 of the Scotland Act 1998 is an essential prerequisite for a lawful referendum to be held.

We have also recommended that the Scottish Government publish a White Paper before the introduction of the Bill detailing key milestones, the mechanics for achieving independence and the transitional arrangements which may be required. We believe that this information should be made known in advance of a vote.

You can read our full response here.

The Society responded to the House of Commons Exiting the European Union Committee inquiry into the UK’s negotiating objectives for the withdrawal from the EU.

We have highlighted our key public interest issues, which include: ensuring stability in the law; maintaining freedom, justice and security; maintaining recognition and enforcement of citizens’ rights including the rights of parties with pending cases before the Court of Justice of the EU; promoting immigration, residence, citizenship and employment rights of EU Nationals resident in the UK; and taking account of the interest of the devolved administrations and Scots Law in the exit negotiations.

We also highlighted our key membership issues to the committee, including promoting continued professional recognition and continued rights of audience in the EU and protecting legal professional privilege for the clients of Scottish Lawyers working in the EU or advising on EU Law.

We have also responded to the Scottish Government’s paper ‘Scotland’s Place in Europe’ which sets out the government’s position following the result of the EU Referendum.

You can read all our work on Brexit here.

The Criminal Law Committee submitted written evidence to the Scottish Parliament Justice Committee on the Legislative Consent Memorandum for the Criminal Finances Bill. This follows our written briefing sent to MPs in November 2016 and we will be updating this briefing ahead of the Report Stage of the Bill in the House of Commons.

The committee also submitted written evidence to the Scottish Government on the draft Code of Practice on the Exercise by Constables of Power of Stop and Search of the Person in Scotland. We believe that ensuring stop and search is exercised within the terms established by a Code of Practice is a crucial step to ensure lawful and proportionate use of these powers and ensuring that stop and search maintains public confidence.

The committee also responded to the Scottish Government’s consultation on regulations to modify Part 1 of the Criminal Justice (Scotland) Act 2016 to deal with arrests which do not relate to criminal offences and arrests under warrant. During the Bill passage of the Criminal Justice (Scotland) Act 2016, we provided written and oral evidence to the Justice Committee, and written briefings to all MSPs. We welcome many of the provisions of the 2016 Act related to safeguards concerning the rights of suspect held in police custody.

You can read all Criminal Law responses here.

The Health and Medical Law Sub-Committee responded to the Health and Care Profession Council (HCPC) consultation on revised guidance on confidentiality. The HCPC guidance provides advice for registrants about some of the issues relating to how they handle and share information about service users.

We are supportive of the aim to provide transparency and to ensure that that the information given is easy to understand. However, we have suggested that more clarity is needed on the distinction between information which in the public interest and information which is of interest to the public.

As a general comment, we also noted that the draft current guidance fails to fully take into account and recognise the distinctive and differing Scottish position. We have suggested that the guidance should include an acknowledgement that current legislation does not always apply to all jurisdictions within the UK.

You can read our full response here.

The Employment Law Sub-Committee responded to the UK Government consultation on Reforming the Employment Tribunal System. The consultation looks at the issues to be considered in implementing wider justice system reform principles in the system.

We note that the consultation makes reference to the UK Government being committed to transferring responsibility for the functions of the Employment Tribunal and Employment Appeal Tribunal (EAT) to the Scottish Government as set out in the Smith Agreement. As there has been no announcement from either Government as to when this is likely to occur, we have been unable to comment on how these changes will or will not impact upon a devolved tribunal in the future.

We do not wish the Employment Tribunal and EAT in Scotland to miss out on any improvements or efficiencies that could be identified and introduced. However, with particular reference to ‘ageing IT systems’ and the move towards making more decisions online, we would be opposed to new systems being introduced UK-wide and then being replaced a short time later. This is a concern both in relation to the potential for wasted cost and also the risk that the credibility and authority of the Employment Tribunal and EAT could be undermined by the inevitable disruption caused by bringing in too many changes in a short space of time.

You can read our full response here.