Law Reform round up November 2017
Our committees have been working on a number of Scottish Parliament and UK Parliamentary Bills and consultations including pre-recording evidence of child and other vulnerable witnesses and the future of financial regulation and supervision post-Brexit.
The Criminal Law Committee responded to the Scottish Government’s consultation on proposed reforms to criminal law and procedure to address how pre-recorded evidence is taken from child and vulnerable witnesses.
We believe that the presumption that child and other vulnerable witnesses should have their evidence taken in advance of trial is a suitable longer-term aim for the criminal justice system. However, we are aware of the challenges, particularly around the speed of proceedings in the initial stages, in achieving this objective. We have suggested that a suitable approach may be to pilot this with child witnesses in High Court cases, rather than categorising by particular ages or by a particular type of offence. This approach would allow for piloting and improvement in advance of implementing across wider categories of witnesses and proceedings.
We have also raised concerns on potential issues around Articles 5 and 6 of the European Convention on Human Rights. Pre-recorded evidence from an accused could not practically cover all issues raised by the prosecution, and in pre-recording (unless done in the absence of the Crown), would disclose information to the prosecution. In addition, there would need to be a second commission at the end of the Crown case to allow for cross-examination of the accused to take place.
The Consumer, Competition, Rural Affairs and Technology Law and Practice Committees submitted a joint response to the Department for Digital, Culture, Media and Sport’s consultation on the specification for a broadband Universal Service Obligation (USO) to be set in secondary legislation.
We have warned that if broadband coverage is not universal, this would have a particularly negative impact on Scotland, which has a higher proportion of remote rural communities than the rest of the UK. In our response to the Scottish Government’s Independent Strategic Legal Aid review earlier in the year, we noted that independently commissioned research had identified a risk that people in rural areas who were eligible for legal aid would not be able to find solicitors to provide advice. We cautioned that if steps are not taken to remedy this it could result in a two-tier justice system. Where it is not possible to obtain advice in person easily, it is perhaps even more important to have access to remote advice to fill the void.
We note that courts and tribunal services are increasingly moving to online systems and individuals and businesses seeking access to justice or even wishing to defend a claim against them will therefore require a good internet connection. We have also raised concerns about social inclusion, and there are many areas of life where online access is a necessity and some services – e.g. online banking – can in fact be more crucial to those in more remote communities.
The Banking, Company and Insolvency Committee responded to the House of Lords EU Financial Affairs Sub-Committee’s call for evidence on the inquiry into the future of financial regulation and supervision following Brexit.
The UK has been an influential participant in creating the EU financial services regime and has helped steer the EU financial services policy and approach to regulation. In terms of facilitating business, the ability of financial services firms to create branches is considered to be an efficient way of ensuring that entities are regulated while making it easier for them to expand across borders. We note that this has succeeded in reducing the requirement for businesses to comply with multiple sets of rules. This ability is underpinned by harmonised minimum standards to guard against regulatory and supervisory arbitrage and to protect consumers.
The need to comply with only one set of regulatory rules generates cost savings in terms of compliance – both in terms of internal operations and product creation. Following withdrawal the UK may choose to operate different regulatory rules. However, there is a risk that significant divergence from the EU rules could damage the ability of UK businesses to compete for EU business with companies based in the EU for as they would need to comply with two sets of rules.
We also emphasised the need for a transitional arrangement allow people to familiarise themselves with whatever relationship will follow on from withdrawal even if this is an absence of any special trading agreement.
The Obligations Committee responded to the Scottish Law Commission’s call for views on its discussion paper on remedies for breach of contract.
The paper centres on the modernisation of contract law in relation to remedies for breach of contract. This includes proposals to modernise a number of the current Scots law terms. We do not consider that much of the existing language has given rise to practical difficulties and therefore do not believe that there is a pressing need for this type of reform. However, we recognise that certain changes in terminology could prove helpful and might make the law more accessible to non-lawyers.
We support some of the proposed reforms but feel that other suggestions are unnecessary or even unhelpful. We have addressed a number of the changes in light of other international model codes and principles, noting that closer alignment of Scots law to the United Nations Convention on Contracts for the International Sale of Goods could increase the international marketability of Scots contract law.
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