Public policy highlights October 2021

The Society responded to two recent Scottish Government consultations relating to social care.

The Society’s response to the proposals for a National Care Service for Scotland highlighted the complexity of the existing landscape of social care in Scotland. The Society’s response called for any proposed new approach to social care to be based on a clear, evidence-based review of existing provision, identification and analysis of current deficiencies, and to include detailed proposals to specifically address the deficiencies identified. The response also highlighted the need for careful consideration of issues of local decision-making, accountability and proportionately, and for any case for change to be linked to a demonstrable public interest justification and to improve outcomes for the end users of social care services.

The Society’s response also highlighted the need for any new legislation relating to social care to contain clear and attributable rights and duties, and effective mechanisms for redress including legal redress. The response noted the ongoing work to incorporate human rights conventions in to Scots Law, and that any new legislation must be based on and fully embed human rights principles. The response also highlighted the importance of transparent decision-making, robust complaints processes and accountability.

The Society’s response noted that the consultation lacked detail in many respects, and called for further evidence to support the consultation proposals, particularly in relation to the scope of the proposed National Care Service.

The Society’s response to “Anne’s Law”: proposals for adults living in care homes to maintain family and friendship connections also highlighted human rights considerations in a social care context and called for effective mechanisms to allow adults living in care homes to secure their rights.

Both consultations are likely to inform work on proposed primary legislation (a “National Care Service Bill”) expected in the summer of 2022.

Read our responses to both consultations.

Following consideration at committee stage this month, the Law Society issued a statement citing concerns that the Nationality and Borders Bill threatens to create a two-tier asylum system which could result in more unsafe and perilous journeys. Further criticism of the Bill was made for putting those who attempt to save the lives of asylum seekers at sea at risk of facing criminal charges for their action.

It is currently a criminal offence to help an asylum seeker to the UK if it is done for gain, however the new Bill proposes removing the ‘for gain’ element, which could open up anyone who has helped asylum seekers reach the UK facing charges. The Society has raised the question of how the proposals would impact on lifesaving organisations and ships’ masters who save asylum seekers from drowning as they are obliged to do under the UN Convention on the Law of the Sea.

Support from the Society was given to aspects of the Bill which resolve historical injustices, including removing the discriminatory inability for mothers and for unmarried fathers to transmit citizenship, but states that the registration process for this should be free.

The Society also believes that nationality law should be amended to allow children born in the UK to become British citizens automatically, restoring a policy that applied before 1983.

In considering children and asylum, the Society raises serious defects around the legislation’s handling of citizenship of stateless minors. It has urged replacing the age range of minors, set at 5 to 17 within the Bill, to incorporate the UN Convention on the Rights of the Child (UNCRC) definition that a child is “every human being under the age of eighteen years”.

View our work on the bill.

In responding to the consultation, the Tax Law Committee considered that the need for a clear process to consult on and implement legislative change was a key priority for managing the devolved taxes over the course of this Parliamentary session.

The Committee confirmed its support of an early review of LBTT Additional Dwelling Supplement, reasoning that a number of aspects of the existing ADS legislation are unclear and there are a number of issues which have arisen with the application and implementation of ADS which would benefit from resolution or clarification. The Committee highlight the importance of clarity in the law so that individuals can guide their conduct accordingly, as some aspects of the ADS have the potential to create distort taxpayer behaviour, or at least to create disadvantages for those in certain circumstances, contrary to the usual approach of the tax system.

The response outlined the need for a key focus being on ensuring that revenue and benefits authorities are fit for purpose, have the requisite powers to amend the law by way of regulation and the resource agility to respond and amend the system, how it operates, and its guidance as required. It is important that such bodies can use their devolved powers fully – this requires strong strategic ability to consider how to use such powers and responsiveness and agility so as to use powers effectively and at the appropriate time.

The Committee stated that greater transparency and understanding for taxpayers will increase public and professional confidence in the management and administration of taxes. The response sited some previous concern around professional confidence in how taxes are regulated and operationalised by Scottish Government and Revenue Scotland. The response identified concerns about legislative drafting, quality of decision making, content of guidance, and poor communication with taxpayers and agents can undermine the competency of the tax system. A lack of agility in the tax system is likely to have economic impacts for Scotland including inhibiting inward investment, and will reduce trust and confidence in our tax system. It is important that priority is given to resolving these issues so that Scotland can maintain a strong position in the global economy.

The Committee’s response therefore considered it crucial that priority is given to delivering a clear policy cycle for tax legislation including an emphasis on ‘Engagement and Analysis’, supporting a strong policy partnership between Scottish Government and revenue and benefits authorities in particular Revenue Scotland, as well as delivering a well-resourced and agile tax authority.

View the consultation response in full.