Law reform round up January 2016

Our health and medical law committee submitted stage 3 amendments ahead of the stage 3 debate on 17 December.  We called for the legislation to be extended to cover e-cigarettes, until such time more research was undertaken as to their long term effects, as well as for the driver to be held vicariously liable for other smokers in the car, along with a statutory defence for the driver and other smokers if they reasonably believed their passengers were over the age of 18 or took reasonable action to prevent others from smoking.  These amendments were not taken forward by any MSPs, however Jackson Carlaw MSP tabled our last proposed amendment, which called for a review of the legislation after 5 years.  This was defeated during the debate. 

Our full evidence and amendments can be found on our website

Tim Musson, convener of our Privacy Law Committee gave oral evidence to Westminster’s Joint Committee on the Draft Investigatory Powers Bill on 14 December, and we submitted written evidence on 22 December.  We have serious concerns in relation to legal professional privilege and the provisions of the Bill.  Legal professional privilege is key to the rule of law and is essential to the administration of justice. It should be expressly protected in the proposed legislation and the proposal to protect it through a code of practice is not satisfactory.  We have called for the UK Government to clarify their reasoning as to why there is no such protection. 

Our full response and a link to the oral evidence session can be found on our website

We submitted our stage 1 briefing to MSPs ahead of the stage 1 debate on 7 January.  In our briefing we reiterate what we have said at all stages of the Bill and to previous consultations, if the policy objectives of transparency and openness are to be achieved, then the scope of the Bill needs to be widened to include more than oral face to face communications.   We are pleased to see that the Health and Sport Committee have also suggested that the Scottish Government review this position.  It is worth noting that the English legislation as provided for in the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 is to include any ‘oral or written communications’.    This will include e-mails and telephone calls.  

Our full briefing can be found on our website

Convener of our health and medical law committee Alison Britton gave oral evidence to the Scottish Parliament’s Health and Sport Committee on 1 December.  While we are not in a position to comment on the policy merits of changing the organ donation system to a ‘soft opt-out’ system, we recognise the aim of the Bill which is to increase the amount of organs available for donation, and there is a pattern of evidence which suggests that countries with a soft opt-out system have higher rates of organ donation.   We also highlighted that while supportive of the proposal for a person to be able to appoint a proxy to make the decision on organ donation, that the Bill does not make it a requirement that the proxy either consents to or needs to be aware of their appointment.  We suggest that effective proxy decision making can only be made where the proxy has a clear idea of what the individual would have wished. 

Our full written evidence and link to the oral evidence session is on our website

Michael Clancy, Director of Law Reform, gave evidence to the Scottish Parliament’s  European and External Relations Committee on 17 December about the impact of the EU referendum on Scotland. As a Society we are remaining neutral on the question as to whether the UK should remain in or leave the EU but we are examining the potential implications from the legal perspective.

Our full written evidence is available on our website

The criminal law committee responded to two consultations in December.   The Consultation on Prostitution Law Reform (Scotland) Bill proposes to decriminalise activities associated with the buying and selling of sexual services and to strengthen the laws against coercion in the sex industry, advocating the New Zealand model: a set of laws and policies which prioritise the safety, rights and health of people currently selling sex.  We are not in a position to comment on the policy aims of the Bill, however we make reference to s46 of the Civic Government (Scotland) Act 1982, and believe that reform in this particular area of law is required.

We also responded to the Scottish Government consultation on Proposals to strengthen the presumption against short periods of Imprisonment. In our response we state that we do not believe that a sentence of less than 12 months affords any possibility of meaningful work designed within the prison system to reduce reoffending or to learn new skills. The purpose of a sentence of this period can only be that of retribution and confinement.   We suggest that were the presumption against custody to be fixed at six months, it may ensure that the worst and most recurrent summary offenders will still be aware that they face a period of imprisonment, while rendering it less likely than those who are merely a public nuisance face repeated incarceration. 

Full responses to both of the above can be found on our website