Proactive policy work

The Law Society of Scotland believes that the development of Scotland’s administrative justice system would materially assist the creation of a fairer and more just society, and our Administrative Justice Committee therefore embarked in 2018 on a process to assist in the development of thinking about administrative justice in Scotland. A key element of that work has been the development of a principles-based approach to administrative justice. This paper outlines that approach and seeks to persuade policy makers that such an approach is both urgent and necessary.

• Read the paper in full

Scottish administrative justice is going through a time of significant change. In addition to a large-scale transfer of tribunal jurisdictions from HM Courts and Tribunals Service to the Scottish Courts and Tribunals Service, a number of substantive aspects of social security policy are now being devolved. These changes offer opportunities to think strategically about the development of administrative justice in Scotland and to develop a distinctively Scottish approach. At a stage that a more principles-based approach is being taken in areas such as devolved social security, we are exploring the potential for core principles to help determine the ways in which disputes between individuals and the state are resolved, ensuring more effective decision-making, appeals processes and governance.

We have published a discussion paper, examining the landscape for administrative justice, and the case for a principles-based approach to be placed in legislation, including elements around public law, human rights and equalities. We are encouraging views from stakeholders, which can be provided by 31 October by email to policy@lawscot.org.uk or by completing our online survey by 12noon Monday 21 November.

A working group of legal experts, medical practitioners and academics authored an extensive and thorough report to highlight the need for reform of the law around advance choices and medical-decision making in intensive care situations, and made recommendations for legislative solutions.  

Read the report Advance choices and medical decision-making in intensive care situations

Preparatory materials

Annex A, Paper on advance directives, Adrian D Ward

Annex B, Paper on advance choices, Adrian D Ward

Annex C, Advance directives and medical decision-making in intensive care situations, Jonathan Brown

Annex D, Advance planning documents discussion paper, Alex Ruck Keene

Annex E, Advance care planning and medical decision-making in ICU situations, Hilary Steele

Annex F, Commentary on draft sections 40 and 41, Alex Ruck Keene and Adrian D Ward

We recognised that considerable work had been undertaken by stakeholders to identify areas of crofting law requiring reform and to progress reform of the law in relation to crofting in Scotland. Our Rural Affairs Sub-committee selected a limited number of matters relating to crofting law which were considered in detail as part of this project. The project focused on the legal aspects of these matters, rather than the underlying policy.

The project considered these matters with a view to suggesting specific improvements to the existing legislation. It focused on:

• Croft succession – in particular, circumstances where there is no transfer of the tenant’s interest within two years of the date of death
• The legal status and definition of owner-occupier crofter
• Reviewing the statutory conditions of tenure
• Definition of “crofting community”

Following a public consultation that ran from February to May 2020, we issued our full report into crofting law reform in October 2020 and called on the Scottish Government to take prompt action to effect legislative change. 

• Read our full paper on crofting law reform
• Read our executive summary to the paper

This work follows on from the Society’s report published in April 2019 which made a number of recommendations regarding the lack of appropriate understanding and measures for the vulnerable person accused of criminal offences which could among other issues ultimately lead to potential miscarriages of justice.  

Vulnerable people accused of a crime in Scotland need to be treated consistently and fairly. Building on that earlier work, the Criminal law Committee has set up a small working group including academics and practising solicitors. The remit of the group is to review the existing legislation and practices in Scotland in relation to the vulnerable accused person. The aim is to produce a further report by summer 2020 which by focusing attention on the vulnerable accused is  seeking to raise awareness of the issue and its extent and to promote discussion as to possible ways forward in relation to legislative and non-legislative measures. The Committee has been obtaining information from both the  defence and Crown perspectives, which highlight the issues that arise in cases involving vulnerable accused persons. This information  will identify the practices and concerns which will focus the report.

There has been a significant growth in the number of cohabitating couples and families in the UK in recent years. Within the period of 10 years to 2015, the number of cohabiting couple families in the UK grew by almost 30%.

The Family Law (Scotland) Act 2006 (the Act) contains a series of provisions concerning cohabitants – found principally in sections 25 - 29. Section 28 concerns financial provision where cohabitation ends otherwise than by death, and section 29 provides for a surviving cohabitant to make an application to a court following the death of their cohabitant, in intestate cases only.

Following a public consultation in November 2018, we have now issued our report on aspects of sections 28 and 29 of the Act. Our report details proposals to reform those aspects of the law, and we have called for a full review of the law on cohabitants in Scotland.

• Read our full report on the rights of cohabitants
• Read our executive summary to the report