Law reform round up September 2017
Our committees have been working on a number of Scottish Parliament and UK Parliamentary Bills and consultations including the Proposed Children (Equal Protection from Assault) (Scotland) Bill, Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill and Brexit.
The Constitutional Law Committee responded to the UK Government and the EU Commission position papers in relation to judicial and administrative proceedings that are ongoing at the point of exit from the European Union.
We believe that it is critically important for the UK Government and EU Commission to consider the needs of litigants with cases going before the Court of Justice of the European Union (CJEU) prior to Brexit. Neither paper has taken full account of the needs of court litigants and there is a need to adopt a principle-led approach to the reforms to ensure that people taking cases to the CJEU would not be adversely affected.
We are concerned that there appears to be a mismatch between the two position papers and it will be essential to ensure that any gaps are addressed. It is our view that the negotiations on such important matters must be underpinned by the rule of law and achieve justice for litigants involved in cases going before the CJEU. We have concerns that there is no provision in the UK and EU position papers to deal with cases pending before the CJEU at exit day, meaning litigants or potential litigants in that situation would lack certainty about how their cases would progress.
We have also said that even once the UK has left the EU, there will still be a need for a determination on applicable EU law in relation to some cases, although the UK will no longer have recourse to the CJEU. It is critically important that all current and pending cases are identified quickly, and that they, in addition to any new cases, are dealt with using adequate transitional arrangements, rather than being left to go through the CJEU system and risk not being heard by exit day.
The Criminal and Family Law Committees responded to the proposed Children (Equal Protection from Assault) (Scotland) Bill.
We believe that removing the common law defence of ‘reasonable chastisement’ would bring greater clarity in the law by eliminating any need to interpret or define ‘reasonableness’ in the context of a physical assault on a child, and provide children with the same protection under the law as adults.
We also feel that the proposed bill would help to bring Scotland in line with its international obligations. The international legal community is clear that corporal punishment is not in keeping with the present day understanding of human rights. Physical punishment of children is now unlawful in 52 countries around the world and by retaining the common law defence of reasonable chastisement, the law in Scotland signals that some forms of assault against children are acceptable.
The UK is signatory to and has ratified the United Nations Convention on the Rights of the Child, however the UN Human Rights Committee and UN Committee on the Rights of the Child, have both stressed that the law in the United Kingdom is falling short when it comes to the protection of children. They have called for the law to be reformed as a matter of priority to put an end to corporal punishment in all settings, including the home.
The Civil Justice Committee responded to the Scottish Parliament’s Justice Committee call for evidence on the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.
We believe that the Bill has the potential to significantly increase access to justice. However, it is difficult to gauge the full impact of the Bill, as many of the details of the provisions will be made at a later stage and we have encouraged greater certainty on behalf of our members.
In the report by Sheriff Principal Taylor, reference was made to the Contingent Legal Aid Fund and we have raised concerns that there is no reference to the Fund in the Bill. We have also raised concerns with the wording of section 10 and believe that the current draft may have unintended consequences. We agree with the basic proposals for group proceedings under section 17 and have suggested that a system which proceeds on the basis of “opt in” would be a positive development and should work for solicitors in practice.
The Banking, Company and Insolvency Committee, Intellectual Property Committee, Obligations Committee and the Rural Affairs Committee submitted a joint response to the Scottish Law Commission’s call for evidence on the draft Moveable Transactions (Scotland) Bill.
We responded fully to the Commission’s initial consultation in 2011 and since then a number of our Committee members have provided detailed input to the Commission’s work on an ongoing basis.
We are aware that there is strong support for these changes across the profession and would encourage the Scottish Government to bring forward legislation in this area in line with the Commission’s recommendations. The time dedicated by many legal professionals to the Commission’s reform project is further proof of the importance of the reforms to ensure that the Scottish legal system is fit for purpose and reflects modern commercial realities, in particular in relation to the increasingly electronic nature of communications and commercial transactions.
We consider that the Bill as a whole presents a modern, balanced and practical set of reforms that should provide benefits to Scottish businesses - including, and perhaps especially, SMEs - while protecting consumers. We also welcome the making of specific provision for entities actually or potentially subject to insolvency proceedings.
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