Public policy highlights August 2018

Our Environmental Law Sub-Committee responded to the UK Government’s Department for Environment, Food and Rural Affairs’ consultation on environmental principles and governance after EU exit.

We note that the principles referred to in the consultation do not align with those set out in section 16(2) of the EU (Withdrawal) Act 2018. The Act requires the Secretary of State to publish a draft Bill containing the set of environmental principles which are detailed within section 16(2). We also noted that section 13B of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill contains a different set of principles to that found within this consultation and in the EU (Withdrawal) Act 2018.

We feel that strong collaboration between the UK Government and the devolved administrations is important. This is particularly significant given the transboundary effects of environmental impacts. Consistency in the way that these principles are applied should ensure that international environmental obligations are met.

See our full response.

Our Consumer Law Sub-Committee responded to the Financial Conduct Authority (FCA) consultation on their proposal to regulate claims management companies.

We have previously stated on several occasions that we believe that all those providing legal services to the consumer should be regulated, including claims management companies. This is a view that we have expressly stated in our recent submissions to the Scottish Government independent review of legal services.

We therefore welcome the proposed regulation of claims management companies by the FCA being extended to Scotland under the provisions of the Financial Guidance and Claims Act 2018.

See our full response.

Our Criminal Law Committee responded to the independent review of gross negligence manslaughter and culpable homicide commissioned by the General Medical Council (GMC).

We note that there has only been one prosecuted case of culpable homicide to date in Scotland where the circumstances were different from the successful gross negligence manslaughter prosecutions in England and Wales. This one Scottish case provides no real insight into the Scottish process.

There are a range of factors which may be relevant when considering what lessons can be taken from the Scottish system on how fatal clinical incidents are dealt with. Prosecution will only take place if there is sufficient admissible evidence according to the Scottish evidential requirements and that prosecution is justified in the public interest. Public interest is fully discussed in relation to the role of the Lord Advocate as the head of the Crown Office and Procurator Fiscal Service (COPFS) in instructing any criminal prosecution. Similar considerations apply in assessing the circumstances of any death and whether that death is of significant public concern to justify a fatal accident inquiry.

See our full response.

Our Rural Affairs Sub-Committee responded to the Scottish Government’s consultation on options to stabilise and simplify income support for land managers in Scotland in the period immediately after Brexit.

We welcome the general themes of stability and security for producers, land managers and businesses. This is important as the negotiations in relation to the UK’s withdrawal from the EU continue. We recognise that stability for producers and businesses will likely assist in ensuring stability for consumers.

We note that it is important that any system of support is lawful and comprehensive. It will be necessary for any system to be comprehensible and transparent so that it can be understood by those that it will affect. It is crucial to upholding the rule of law that the law is clear and has specification. Individuals and organisations must be able to guide their conduct based on clear and understandable legal standards. This is particularly important in the context of the penalty regime.

See our full response.