Public policy highlights November 2020

The Society’s policy committees analyse and respond to proposed changes in the law. Key areas from the last few weeks are highlighted below.

UK Withdrawal from the European Union (Continuity) (Scotland) Bill

The aim of this Bill, which completed stage 2 in the Scottish Parliament on 25 November, is to make sure that Scottish law can continue to align with EU law after 31 December 2020. Both our Environment Law sub-committee and Constitutional law sub-committee proposed amendments to the bill, the former on introducing a requirement for Scottish Ministers to consult with the Chair of Environmental Standards Scotland before giving notice to remove a member; and extending the list of relevant bodies with which the functions of Environmental Standards Scotland should be careful not to overlap to include Audit Scotland, the Scottish Information Commissioner and the UK Committee on Climate Change.
The Constitutional Law sub-committee amendments helped prompt consideration of issues such as the delegation of functions to public bodies, the criteria for Scottish Ministers when using the ‘keeping pace’ powers (the use of regulations to keep pace with EU law), and ensuring sufficient parliamentary scrutiny. More information is available on our website.

United Kingdom Internal Market Bill

The UK Internal Market Bill transferred to the House of Lords on 30 September. The Constitutional Law sub-committee issued a briefing on 15 October in advance of the bill’s second reading and suggested amendments ahead of the Committee stage on 26 October.
During committee stage, Part 5 of the bill was significantly amended to remove the clauses which contravened international law and the withdrawal agreement. During report stage, the government accepted the premise of many of the Society’s amendments that we promoted during committee stage. However, due to subsequent opposition amendments, the bill was restructured, removing the opportunity for the amendments to be made. The bill will now proceed from the Lords to the Commons and into the process known as ‘ping pong’ where Lords amendments may be rejected by the Commons and vice versa.

Artificial intelligence and intellectual property

The Intellectual Property sub-committee responded to an Intellectual Property Office consultation on artificial intelligence (AI) and intellectual property (IP).
In preparing its response, the committee held a stakeholder roundtable, inviting participants from industry and academia with a particular interest in AI and machine learning to discuss pertinent issues with our intellectual property (IP) law specialists. The breadth of expertise from a variety of disciplines across the IP spectrum allowed the committee to identify and test the core themes set out below across a range of industries.
The response expressed support for the IPO’s objective in ensuring that IP rewards people for creativity and innovation and promoting the value of a modern and effective IP regime in supporting the proper functioning of an innovative economy.
The committee was strongly of the view that overall, the existing IP frameworks adequately cater for AI. This was a consistent theme in the roundtable discussion across all areas of IP: while there are some areas in which clarification as to how the rules apply in the specific context of AI is necessary, the fundamental principles are not affected. You can read our response on our website.

Coronavirus guidance survey

The Scottish Government has published a large amount of guidance on COVID-19, including a number of guides specifically aimed at different sectors in Scotland. In order to improve this guidance they issued a survey requesting feedback from key stakeholders who rely on this guidance to help them identify any issues and gaps.
The Criminal Law committee responded to the survey to highlight the need for guidance in the context of criminal law; and for it to be produced contemporaneously with developments in the law. Among the points raised, the committee pointed out that individuals and businesses should not be subject to criminal law penalties, including fixed penalties, without understanding exactly how and why they have breached the law.

Review of Capital Gains Tax - November 2020

The Office of Tax Simplification issued a consultation seeking views on Capital Gains Tax, specifically the aspects of CGT that are particularly complex and hard to get right, and asked for suggestions for improvements.
The Tax law sub-committee submitted a wide-ranging response covering issues such as taxpayer awareness of liabilities, the strict application of time-limits on disposals following matrimonial separation, and reliefs available to business owners. You can read the response on our website.