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Our Priorities for the 2021 Scottish Elections

www.lawscot.org.uk 1 Foreword

With the 2021 elections just weeks away, this set of Priorities lays out some of the key issues on which we will press for progress over the next five years. There are six key strands, but we open with one overarching principle – the importance of the rule of and human rights.

The rule of law is not just something After decades of underinvestment and There are many other recommendations to be respected, it is something to be ever-increasing complexity, our legal aid in this report which I urge all parties actively upheld, protected and valued. system remains under threat. The recent to consider. We have an opportunity It underpins our democracy and society. uplift in fees is welcome, but only one to embed improvements in our So I introduce our priorities for the next small step on the way to reforming the and system; revive faith in fatal Parliament by calling on every individual system and recognizing and respecting accident inquiries; boost innovative seeking election to commit not only to those who work within it. Without the growth by modernising the respect the rule of law, but to protect, access to justice which legal aid provides, governing investment; become a true value, promote and celebrate it. citizens will be deprived of their rights and global hub for digital innovation including feel further removed from our laws and legaltech; and seek strong collaborative It is astonishing to look back just five our lawmakers. Access to legal advice and relationships with international partners. years to the last Holyrood elections representation must be available to us all, and consider the pace of change. not just those with the means to pay. The pandemic and create Since May 2016 we have seen three immediate challenges which demand UK Prime Ministers and a vote to leave I go into this election as the first open immediate focus, but by taking the longer the EU followed by four years of Brexit member of the LGBT+ community to hold view, we can emerge at the end of the next negotiations. Then in the last year of the office of President of the Law Society Session as a more vibrant, inclusive and the Session, Parliament introduced of . I was elected by my peers dynamic nation. unprecedented powers to restrict to represent our diverse, modern and freedoms on an emergency basis to dynamic profession and to assure suppress Covid-19 transmission. the highest levels of public protection. Amanda Millar We should rightly acknowledge how far President Yet while much has changed, much of the we have come, but we can make more work that we called for back in 2016 has progress in ensuring the still not reached a conclusion. We have is as diverse as the society it serves. actively engaged with extensive reviews, Like access to justice, access to a law consultations and discussions, but two of career must be a realistic aspiration for the central pillars of our priorities in 2016 our young people, regardless of their return in 2021 with greater urgency: legal background. services regulation and access to justice. Again, we stress the need to prioritise the modernisation of legal services regulation and the delivery of meaningful change to protect access to justice.

www.lawscot.org.uk/2021priorities 2 The Law Society and our engagement with Parliament

The is the professional body for over 12,000 Scottish , who collectively engage with millions of people across the full spectrum of policy issues. With our overarching objective of leading legal excellence, we strive to excel and to be a world-class professional body, understanding and serving the needs of our members and the public. We set and uphold standards to ensure the provision of excellent legal services and ensure the public can have confidence in Scotland’s solicitor profession.

We have a statutory duty to work in the We are strictly and proudly non- Our priorities run across six themes, public interest, a duty which we are partisan. We engage extensively with with an underlying theme of respect strongly committed to achieving through political stakeholders of all parties or for the rule of law and human rights: our work to promote a strong, varied and none and seek to influence the creation effective solicitor profession working in and development of good law that p.6 Ensuring respect for the the interests of the public and protecting is accessible, intelligible, clear and rule of law and promoting the rule of law. We seek consistent. p.8 Protecting access to justice to influence the creation of a fairer and more just society through our active This public interest function is p.11 Modernising regulation consistent with our regulatory and engagement with the Scottish and United of legal services Kingdom Governments, , representative role for Scotland’s legal p.14 Boosting economic recovery wider stakeholders and our membership. profession, placing us at the heart of civic Scotland and work to achieve p.18 Shaping Scotland’s legal In seeking to influence the creation and performance framework and constitutional future development of high quality law which goals of encouraging development as serves its intended policy purposes, we a more successful country; providing p.20 Enhancing the diversity draw on the expertise of our network of opportunities for all; increasing wellbeing; of the legal profession over 300 volunteer members creating sustainable and inclusive growth; p.23 Driving public policy drawn from the legal profession and non- and reducing inequalities. and law reform solicitor subject experts. This provides a unique and incredibly valuable resource across all policy areas and we are proud to be more closely involved in policy development and law reform across the full spectrum of policy areas than any other body in Scotland.

www.lawscot.org.uk/2021priorities 3 Our Priorities

Ensuring respect for the rule of law • Actively promoting the rule of law and human rights • Further embedding principal UN Conventions on Human Rights into

Protecting access to justice Legal Aid • Implementing recommendations on simplification and funding • Focusing on legal aid legislation early in the Session • Ensuring fees are set at sustainable levels

Digital justice and alternative dispute resolution • Reviewing the use of technology • Ensuring access for vulnerable people • Committing to justice system funding to meet the challenges ahead • Building greater resilience in administrative justice and advice sectors • Implementing a principles-based approach to treat people with dignity, respect and fairness • Reviewing the pandemic’s impact on equalities and relationships of power

Modernising regulation of legal services • Bringing forward a new Legal Services • Ensuring active engagement between Consumer Scotland and sectoral regulators • Introducing a Judicial Factors Bill

Boosting economic recovery Removing barriers in the law to innovation and investment • Introducing a Moveable Transactions Bill • Introducing a Bill

Promoting the Scottish legal profession at home and overseas • Identifying niches in global markets for expansion • Showcasing Scottish legal services and legaltech • Encouraging tech companies to invest in Scotland • Promoting strong trade and cultural relationships • Ensuring practice rights for Scottish solicitors in other jurisdictions

www.lawscot.org.uk/2021priorities 4 Our Priorities

Shaping Scotland’s legal and constitutional future • Engaging broadly on any proposed constitutional changes • Adapting to ensure the Scottish Parliament’s robust scrutiny role is maintained

Enhancing the diversity of the legal profession • Providing funding for a solicitor-apprenticeship • Introducing bursaries for individuals from disadvantaged backgrounds who wish to pursue a career in law • Introducing funding for legal employers to embed flexible working • Considering the equalities and flexible working implications of policies which impact legal professionals • Changing criteria for judicial appointment

Driving public policy improvement and law reform Bills • Increasing incorporation of SLC Bills • Taking forward work on Trust Law, Moveable Transactions and Cohabitation Law

Post-legislative scrutiny and consolidation • Increasing post-legislative scrutiny • Consolidating the law in areas of unnecessary complexity • Reviewing charity law

Priority areas for law reform • Reforming the FAI system • Coordinating and updating legislation across adult incapacity, mental health, and adult support and protection • Reviewing remote signing and witnessing and digital signatures • Reviewing and reform succession law • Updating scrutiny of devolved tax legislation • Reviewing the LBTT Additional Dwelling Supplement • Completing work on rural and environmental law • Consolidating and improving law • Consolidating, simplifying and modernising compulsory purchase powers

www.lawscot.org.uk/2021priorities 5 Ensuring respect for the rule of law

www.lawscot.org.uk 6 Ensuring respect for the rule of law

At the heart of any fair and just society lies the fundamental principle of respect for the rule of law. It is the basis on which citizens conduct their lives with , good order and security. This respect for the rule of law applies to all of us but it is of particular importance that it is upheld by those in positions of power, whether through formal authority or practical influence.

The legal sector is a fundamental pillar of Scotland can be rightly proud of its We urge all parties to: civil society. Lawyers harness their skills, record on human rights and the clear experience and professionalism to protect political will to embed this within the • Commit to actively promoting the rule people’s human and other legal rights, work of the Scottish Parliament and of law and human rights across all ensuring those rights can be enjoyed Government. The National Taskforce on activity by Parliament and Government equally by all of us. In doing so they are Human Rights Leadership will propose and to challenge any opposition to upholding the rule of law, a cornerstone of a statutory framework for human rights this fundamental cornerstone of our democratic society. Lawyers must be free that will import internationally recognised democracy to carry out this fundamental role without human rights standards and protect the • Commit to further embedding UN fear of intimidation or restrictions to their human rights of people in Scotland. We Conventions on Human Rights into or impartiality. are committed to supporting the work Scots law needed to realise this critical goal in the Government and Parliamentarians at next Parliament. all levels must unconditionally support and work within the rule of law. To Human rights can be further embedded do otherwise would fundamentally in our justice system. Just as there undermine Scotland’s reputation as have been moves to embed the UN a fair and just society, a trustworthy Convention on the Rights of the Child negotiating partner, and a safe place to into law in the current Parliament, the UN do business. Over the next Session the Conventions on the Rights of Persons with Scottish Parliament and Government will Disabilities; on Elimination of all Forms face significant challenges as we navigate of Discrimination Against Women; and changing relationships with the rest on the Elimination of All Forms of Racial of the UK and develop in international Discrimination can be given further effect relations more generally. In tackling these in domestic law. challenges, we must not lose sight of our duty not just to comply with but also to champion the rule of law, fundamental human rights and respect for democracy.

www.lawscot.org.uk/2021priorities 7 Protecting access to justice

www.lawscot.org.uk 8 Protecting access to justice

Ensuring that people have access to justice is an essential constitutional and human right. Access to justice gives people in Scotland a voice, often at the most challenging times of their lives. Whether unfairly dismissed, unlawfully evicted, resolving child custody issues, or defending criminal charges, it is imperative that people have access to justice and to the advice they need to argue their case. Access to justice relies on and underpins the rule of law, ensuring everyone in society is able to enforce their rights and ensure others uphold their obligations and responsibilities. Access to justice is fundamental to our democracy and way of life.

The impact of Covid-19 has highlighted There is an urgent need to review Because of the complexity of the system the importance of access to justice as payment for this work if solicitors are to and the challenges around funding, many people have had to face uncertainty be able to build business model around there has been a substantial reduction around health, housing, employment continuing provision of legal aid work. in the number of firms available to offer and other issues. Solicitors have worked Before 2019 and 2021, most fees had legal aid work. Over the last decade, the hard to preserve that right, supporting remained static for at least a decade and number of firms providing civil legal aid clients throughout. Our justice system for some types of work they have not has decreased by 16% and the number has adapted to meet the challenges that increased in absolute terms a generation. of criminal firms has decreased by 25%. the crisis has posed to date and will be This left firms being unable to invest in Urgent action is needed to simplify the critical to society’s continuing response the future or ill-equipped to meet the legal aid system and to place its funding and recovery. financial shock resulting from Covid-19. on a sustainable footing, taking inflation Notwithstanding the government into account in the setting of realistic fee Legal Aid support announced to assist through the levels in future. Legal aid is central to access to justice pandemic, a process for periodic review, in Scotland, helping people in over taking inflation into account, is sorely An independent review of legal aid 250,000 cases each year in difficult, needed. reported in 2018, although the majority life-changing situations. Whether facing of its recommendations remain to criminal prosecution, family separation, Encouragingly, investing in legal aid saves be implemented and would require discrimination, housing problems, debt or more than it costs and such investment legislation to do so. other issues, legal aid is available through would therefore result in a clear net a network of over 700 firms in towns and benefit. Our research on the social return cities across Scotland. on investment in legal aid showed that for We urge parties to consider: every £1 spent on family cases there was The legal aid system, however, is badly a saving of £5 to the public. For every £1 • Implementing the recommendations in need of overhaul. It has become spent on housing cases there was a saving of the independent review around overly bureaucratic and complex to of £12. simplification and sustainable funding navigate - both for individuals seeking support and for the solicitors who provide • Bringing legal aid legislation forward this essential service. The governing early in the next session legislation introduced back in 1986 therefore pre-dates both the Scottish • Ensuring that fees are set at sustainable Parliament and the introduction of human levels, taking into account the impact of rights legislation now central to many of inflation, and kept under regular review these cases.

www.lawscot.org.uk/2021priorities 9 Protecting access to justice

The move towards digital justice and There are opportunities to act on lessons In responding to the crisis, greater alternative dispute resolution learnt during the pandemic to improve resilience will help guard against the procedures in respect of civil cases too. impact of future shocks, through decision The impact of Covid-19 has accelerated Where appropriate, civil cases could be making, dispute resolution and properly the use of technology in our justice diverted to mediation or other forms of supported advice services. system, allowing people to bring actions alternative dispute resolution, avoiding online, or to participate in cases by the need for them to be heard in . telephone or video call. Covid-19 has led to greater state We urge parties to consider: The wider use of technology is overdue, intervention in citizens’ lives, with the • Reviewing the use of technology, but it is crucial that everyone can necessity for restrictive measures to particularly hearings by video, to ensure participate effectively. Measures that have protect health and the provision of that people are able to participate been introduced out of necessity will need financial support through furlough, social effectively to be reviewed as our recovery progresses security and other measures. Restrictions to ensure they are inclusive and achieve on travel and social gatherings, • Ensuring that vulnerable people are the same result whether people appear requirements for face coverings in public able to access the justice system and in person or virtually. Assessing virtual spaces and mandating isolation for those addressing issues around mental health custody hearings and trials in particular testing positive or displaying symptoms of in the criminal justice system, including will be crucial in ensuring that justice is the disease are unprecedented in modern support for the vulnerable accused being delivered fairly to all. times. In reviewing and responding to how this relationship has changed there • Providing adequate funding for the In considering the impact of digital is an opportunity to establish governing justice system to meet the challenges justice, we should take the opportunity principles around how to resolve disputes ahead, both to invest in new technology for a wider review of how people access if something goes wrong. and also to address the case backlogs the justice system and what adjustments arising from Covid-19 could be made to help those who find The current Scottish Parliament has access more challenging such as people established a more principles-based • Building greater resilience in our with a disability. It is common for the approach in areas such as devolved social administrative justice system and accused in criminal cases to have mental security. Broadening this to ensure public advice sectors health issues or other vulnerabilities and bodies treat people with dignity, respect • Implementing a principles-based different approaches might address these and fairness across the full spectrum of approach to encourage all public bodies issues while also maintaining strong and services they provide and interventions to treat people with dignity, respect and safe communities. they take can ensure more effective fairness decision-making, appeals processes and In the wake of Covid-19, the backlog of governance. There is potential for core criminal cases has increased significantly • Reviewing of the impact of the principles to effectively underpin any with the time it takes for a criminal case pandemic on equalities and new balance of power between citizens to come to trial doubling. It is in the relationships of power across society and the state in a way that does not interests of everyone involved in criminal disproportionately impact those most cases - whether the accused, a witness, vulnerable or marginalised in our society. a victim or a relative supporting any of these - that these cases are concluded as quickly as possible. Everyone benefits from removing uncertainty around trial dates and reducing the number of people on remand awaiting trial. Addressing this backlog will require additional funding to increase court capacity.

www.lawscot.org.uk/2021priorities 10 Modernising regulation of legal services

www.lawscot.org.uk 11 Modernising regulation of legal services

Scotland benefits from a thriving legal services market. Solicitors support people not only during some of the most difficult times of their lives but also at times of excitement and opportunity, like buying a new home or setting up a new business. The legal profession also accounts for tens of thousands of well-paid, high-quality professional jobs, boosting the economy by around £1.5bn each year. A successful legal profession is also one The need for reform is particularly Reform is also needed to allow greater where professional standards are high, pressing in consumer complaints. The entity regulation of legal firms and more where consumer trust is maintained and current complaints system established in flexibility to suspend solicitors suspected where robust action is taken when things legislation is too complex, too slow and of wrongdoing. Consumers deserve go wrong. It is why there must be a strong too expensive to administer. We know it greater protection through restrictions on and fair system of regulation that allows lets down both consumers and solicitors. who can describe themselves as a ‘lawyer’ the legal sector to succeed; protects We have welcomed work with the current and action to address the currently consumers and the wider public interest; and the Scottish unregulated section of the legal services and promotes competition. Legal Complaints Commission (SLCC) to market. We can make Scotland a more develop a package of reforms to make attractive place for legal firms to base However, most of the legislation the system quicker and more efficient. themselves by allowing the Law Society underpinning the regulatory system for However, greater change is now urgently to offer a single system of regulation for solicitors is now 40 years old. Much of it is needed through primary legislation. firms operating across the UK. out of date and fails to account for today’s modern, innovative and diverse legal We believe there is an opportunity to There are so many opportunities for profession and the increased expectations transform the SLCC, the gateway for improvement which is why we believe of Scottish consumers. complaints against legal practitioners, a new legal services bill, providing for into a Scottish Legal Service flexible and permissive regulation of legal Back in 2016, we pressed the newly which could concentrate properly on services, should be presented early in the elected Scottish Government to make dealing with consumer complaints next Session of the Scottish Parliament to regulatory reform a key priority. We were thoroughly but swiftly, giving focus to deliver these and other critical reforms. delighted when Ministers responded to consumer redress and compensation. our call and established an independent review of legal services, which reported This would allow the Law Society to in 2018. Nearly three years on, the need continue its strong track record of for change and the creation of a flexible addressing issues of professional and modern framework for regulation misconduct and prosecuting for is greater than ever. Importantly, discipline. Similar systems operate in any change must also protect the , and now in Northern independence of the legal profession as Ireland. All this work could be subject to a cornerstone of a free and fair society. It rigorous oversight by the office of the Lord must also avoid unnecessary costs, which President as the independent head of the damage competitiveness and impact legal profession, avoiding any perception legal fees which consumers must pay. of political oversight.

www.lawscot.org.uk/2021priorities 12 Modernising regulation of legal services

Increasing interaction between Enhancing Judicial Factors to better We urge all parties to consider: Consumer Scotland and regulators protect consumers of legal services • Bringing forward a new Legal Services The creation of Consumer Scotland was We have a duty to protect the public, Bill to modernise regulation of the legal a welcome development, ensuring a including in the very rare cases where profession as an early priority in the valuable Scottish-specific consumer clients’ funds are at risk. In serious cases, next Session perspective through advice, advocacy we can apply to the for and research. In our regulatory capacity, the appointment of a Judicial Factor to • Creating a responsibility on the part of we develop rules, guidance and take charge of a solicitor’s estate and Consumer Scotland to actively engage regulatory approaches to address an deal with assets and liabilities, assisting with sector regulators at their request ever-evolving legal services market. clients to recover sums held on their • Introducing the Scottish Law Consumer Scotland will have a formal behalf. The Scottish Law Commission’s Commission’s draft Judicial Factors duty to provide advice to the Scottish 2013 report and draft Bill, subject to some (Scotland) Bill within the next Session Government and powers to request amendments, would considerably and incorporating issues around information from other regulators. With improve this process and enhance public incorporated practices within this an additional specific duty to provide protection. This would also provide an process insight and feedback when approached opportunity to correct a serious issue by sectoral regulators to do so, it would which restricts our ability to protect the also provide a central point of contact to interests of clients of an incorporated discuss consumer matters and ensure practice which falls into serious the consumer perspective is fully and difficulties. carefully considered.

www.lawscot.org.uk/2021priorities 13 economicBoosting recovery

www.lawscot.org.uk 14 Boosting economic recovery

The Covid-19 pandemic has had a profound impact on all levels of our society and economy, not least in substantially disrupting the way businesses operate and how individuals work. This has had a particular impact on certain parts of the legal profession. In , court business has been significantly curtailed, remote trials have begun and radical proposals have been put forward to address the backlog of cases. Civil work has had to quickly adjust to the focus on working from home, restrictions on in-person meetings, changes to the operation of the Land Register and in many other ways.

Scotland’s legal sector is at the heart of Removing barriers in the law to innovative businesses and encouraging our economy. The advice and services innovation and investment inward investment, incentivising it provides are vital to key sectors such companies to base themselves in as energy, food and drink, financial and Scotland has a long and proud reputation Scotland and remain here as they grow, professional services, and tourism. A for research and innovation across and to create high-quality jobs across the recovering legal sector will play a vital role numerous sectors including food and country. in creating a more resilient Scotland. drink, financial services, chemical and life sciences and energy. We are well Similarly, the law on Trusts is outdated We will continue to work closely with the placed to be home to world-leading with the main legislation in this Scottish Government and its agencies innovative industries, particularly for area dating back to 1921. Trusts are to recognise the role of legal services in IP-rich businesses in growth sectors important instruments commonly used driving economic growth, and to promote such as fintech, the gaming industry not just for private arrangements, but its integral role within the export strategy. and innovative energy generation also commercially, and commonly for Measures to support the sector not just technologies. pensions, life policies and other financial survive but thrive will benefit individuals, products. In its report the SLC found that businesses and society the length and Access to external finance is clearly linked Scotland was ‘losing out’ as the existing breadth of Scotland. to how easy it can be to take security trusts regime compares very unfavourably in any given jurisdiction and to how with that found in . As we recover from this unprecedented attractive that jurisdiction is to investors. crisis there is an opportunity to rebuild The current legal framework lacks not by looking backwards but forwards such a mechanism and thereby places to a more nimble and dynamic economy Scotland and Scottish businesses at a We urge parties to consider: and society, capable of greater resilience competitive disadvantage, hampering the • Bringing forward a Moveable and innovation. Our work to stimulate ability to use their intellectual property, Transactions Bill to create a thriving innovation, including in the field of legal plant, equipment and stock, shares innovative business investment tech, within an already modern and and balances as collateral to fund their environment as an early priority in the dynamic legal sector has the potential to businesses. next Session drive sustainable growth across the whole Removing this barrier is vital to ensuring economy. • Introducing a Trust Law Bill to modernise our legal system incentivises those based the law around trusts, allowing for in Scotland or seeking to base themselves more nimble and creative commercial here. It is widely agreed that introducing solutions to funding models and the Scottish Law Commission’s (SLC) eliminating the current competitive draft Moveable Transactions Bill would disadvantage in Scots law remedy these barriers. This would have a direct impact in meeting the National Performance Framework’s aspirations to create a platform for thriving and

www.lawscot.org.uk/2021priorities 15 Promoting the Scottish legal Boosting profession at home and overseas economic recovery

Legal services at the heart of a globally In 2018 Scottish Legal International (SLI) Digital innovation and legaltech competitive Scotland was formed, an initiative of a group of Scotland’s leading firms, Covid-19 swiftly accelerated the pace In Scotland, we pride ourselves on in partnership with Scottish Development at which online working was adopted punching above our weight when it International and the Law Society, to in Scotland and further afield as the comes to making our mark on the rest of promote the country’s legal sector to legal sector rapidly moved to an online the world. Scotland’s vibrant legal sector overseas markets. It aims to highlight world, from remote working to online can be at the heart of the Government’s the significant international work carried court hearings. Cyber resilience, secure ambitions for Scotland’s economy to be out by Scottish solicitors and encourage communication and virtual meetings are open, connected, globally competitive expansion by marketing Scottish legal more important than ever, while getting and entrepreneurial, while also being services as an essential component the basics right is a feature of all modern inclusive sustainable, and ensuring that of successful international trade and workplaces and the foundation for digital Scotland makes a positive contribution investment. transformation. Our culture has changed, internationally. and we need to support its evolution. Over the course of the next Parliament Innovation in legaltech is at the heart of The Scottish Government’s Scotland: A there is a clear opportunity for promotion our vision. Trading Nation set out plans for making of the role of our legal sector in developing a substantial investment in trade and trade agreements and leveraging these Even though we are a smaller jurisdiction growing Scotland’s exports. The Vision for the greatest economic and social than , we punch for Trade sets out principles and values for benefit. well above our weight. As a smaller Scotland’s future trading relationships. As jurisdiction, Scottish law firms see the the UK negotiates new deals with trading value of taking a more collaborative partners across the globe, we have a approach to developing areas such as collective responsibility to ensure that legaltech. We have lent our full support Scotland’s voice is heard in this process. to the development of legaltech in recent years and believe greater backing at The legal profession is ideally placed to Government level can build further support these trade initiatives. We are momentum. not only a significant economic generator in our own right but we are critical to the In 2018 we launched LawscotTech. In success of Scotland’s other key sectors. Scotland we already have the globally The Review of Legal Services Regulation respected FinTech Scotland community, included recommendations that the which brings together the financial Government should as part of its trade services sector with technology and and investment agenda aim to identify academia. LawscotTech follows a similar niche areas in the global market where collaborative model to stimulate the we might target our efforts; and work development of a thriving and world- with the sector to bring all the key players leading legaltech sector in Scotland. Our together to develop and implement a recently announced partnership with strategy to maximise our potential for FinTech Scotland and ScotlandIS will help growth and the contribution we can make further develop cross-sector collaboration to the Scottish economy. collaboration.

www.lawscot.org.uk/2021priorities 16 Boosting economic recovery

Working across sectors and national We urge parties to consider: borders can drive the development of Scotland as a globally respected hub • Work by the Scottish Government and its agencies to identify niches in global markets for legal services and legal technology where Scottish legal services have strong growth potential; and supporting firms innovation, creating competitive looking to expand into these markets advantages for Scotland’s legal sector • Creating a strategy in partnership with key players in the legal sector to showcase the and their clients in markets at home and cutting-edge and innovative achievements of the Scottish legal profession and to overseas. We welcome the support of maximise potential for growth in the Scottish legal services and legaltech markets at a agencies at a UK and Scottish level and Scottish, UK and international level the opportunities to promote legal sector and legaltech businesses via international • Providing full collaboration and promotional support by government and its agencies trade promotion efforts. With the support for initiatives such as LawscotTech to cement Scotland’s position as a global hub for of the next Scottish Parliament and legal service innovation Government we can fully leverage this opportunity to showcase the breadth • Promoting the importance of the legal sector to the growth of Scotland’s digital of talent and opportunity in Scotland, economy driving growth and creating more high- • Encouraging technology companies to invest in Scotland by assisting them to develop quality jobs. products

• Promoting collaborative relationships with the EU and global states and blocs

• Ensuring practice rights for Scottish solicitors in other jurisdictions are maintained and the interests of the legal profession and broader Scottish economy are front and centre in trade negotiations

www.lawscot.org.uk/2021priorities 17 Shaping Scotland’s legal and constitutional future

www.lawscot.org.uk 18 Shaping Scotland’s legal and constitutional future

Scottish Independence and the UK/Scottish Constitutional Settlement

The question of continues to be a live issue in Scottish politics. As a proudly and strictly non-partisan organisation we take no position on whether Scotland should be an independent country; on whether a referendum on Scottish independence should be held; or on whether any such referendum should be within the lifetime of the next Scottish Parliament. With some of the major parties expected to stand on a platform of independence however, those who seek to influence the public and our lawmakers should be able to engage in any such debate from an informed position.

Should an independence referendum be The UK’s withdrawal from the European We urge parties to consider: called or proposed, we urge both sides Union will lead to an unprecedented of the debate to set out with the greatest repatriation of powers. We commend the • Engaging broadly with society at all possible clarity the expected impact of UK and Scottish Governments and the levels to produce clear, detailed and a vote either way or any proposals for other devolved administrations for the relevant factual information on any future constitutional reform. This must work which they have accomplished in proposed constitutional changes, by necessity involve the greatest possible creating a significant number of Common particularly where these are subject to a engagement with citizens, business and Frameworks. Common Frameworks referendum civic society at all levels. Voters should are a good way of managing legislative • Adapting the policies and procedures be enabled to make the most informed and policy diversity within the areas of of the Scottish Parliament to ensure its decisions possible and to plan in advance intersection between devolved and EU robust scrutiny role is maintained and for the impact of either result. law. The UK Internal Market Bill proved enhanced during a period of changing controversial during its passage through Current and future UK Governments and volume, variety and subject matter of Parliament and may continue to be so legislation any future Scottish Government should now it has received . Again, carefully consider the implications of respect for the rule of law and fostering withholding consent for a referendum or positive relationships between the UK holding a referendum without bilateral Government and the devolved nations consent. Respect for the rule of law, must be borne in mind by all in positions legal processes and the values of our of authority. democracy, at both a Scottish and UK level, should be central to these decisions.

www.lawscot.org.uk/2021priorities 19 Enhancing the diversity of the legal profession

www.lawscot.org.uk 20 Enhancing the diversity of the legal profession

Diversity across the legal profession

Scottish solicitors assist clients across the full spectrum of society every day. It is important that the legal profession reflects the society it represents and that talented young people from all walks of life see a future career in the law as attainable and desirable.

Much has been done by the Law Society Covid-19 can revolutionise our approach We urge parties to consider: and our partners in recent years to to flexible working. We know that more improve social mobility and routes to the flexible and family-friendly working can • Including full funding for a solicitor- profession. Our Street Law programme build a more diverse professions, help apprenticeship within any expansion of runs highly interactive and engaging tackle the gender pay gap and make Graduate Apprenticeships courses, largely in schools in more sectors more agile and appealing to a • Providing bursaries for individuals from disadvantaged areas. By examining wider range of candidates. In recent disadvantaged backgrounds who wish practical law, legal policy and the years we have worked to embed a culture to pursue a career in law constitution and tackling not only of flexible working across the legal what the law is but what it should be, it profession. We have engaged extensively • Providing funding for legal employers to encourages pupils to better understand with firms, new entrants and solicitors at embed flexible working the law and consider it as a future career all career levels to promote the benefits of path. The The Lawscot Foundation flexible working and give managers the • The equalities and flexible working provides financial and mentoring support tools to make it work for employers and implications of policies which impact for pupils who have the talent and drive to employees. legal professionals become lawyers, but lack the finances and personal connections. Other initiatives We welcome the Scottish Government’s such as the formation of a Racial Inclusion aim to drive flexible, family-friendly Group, support for the Glass Network of policies in the legal and other professional LGBT+ members of the profession and service sectors, but to leverage the profession and promotion of positive advances that have been made as a result mental health in the profession also work of Covid-19 funding for firms exploring to identify and break down barriers. new ways of working could deliver a real step-change. Careful consideration We have worked closely with Skills should also be given to any policy Development Scotland, a university proposals, such as weekend opening provider and the profession to develop of courts, which would present further a graduate apprenticeship route to barriers to a more flexible future. qualification to offer a truly work-based route to qualification as an alternative to the standard route of Scots law degree, diploma and traineeship. By broadening the talent pool, this has the potential to both benefit the profession and society by diversifying the legal profession and making a positive contribution to social mobility. Support and funding is needed for this programme to establish such an apprenticeship route.

www.lawscot.org.uk/2021priorities 21 Enhancing the diversity of the legal profession

Broadening the talent pool in the We urge parties to consider: judiciary • Changing the legislation setting the criteria for judicial appointment to reflect the The current requirements for broader range of experience that might be gained elsewhere, broadening the pool of appointments to the judiciary potential applicants disproportionately disadvantage solicitors and in particular female • Revisiting the criteria for judicial appointment to focus more on competencies than on solicitors. Legislation currently prevents specific and inflexible career experience requirements, including a new ‘reflection of experienced from being society’ criteria where the ability of a candidate to contribute to a diverse judiciary is considered for appointment as Senators taken into account of the Court of Session, the supreme civil court of Scotland. The profile of tribunal judges, with a significantly higher proportion of women and of solicitors, is more diverse than that of court-based judiciary.

Compounding the issue, experienced tribunal or first tier judges in Scotland are eligible to apply for similar roles in England and Wales, creating a real risk of talented individuals transferring their skills to other jurisdictions. Consideration should also be given to whether legal academics should be eligible to apply for judicial appointment. Simple legislative changes would help the Judicial Appointments Board for Scotland meet its statutory duty to encourage diversity in the range of individuals eligible for judicial office.

www.lawscot.org.uk/2021priorities 22 Driving public policy and law reform

www.lawscot.org.uk 23 Driving public policy and law reform

Our public policy and law reform teams and their network of volunteer committee members, drawn from the legal profession and other experts in their fields, are invaluable partners for our lawmakers in the Scottish Parliament. The law is no more static than the society it governs and continual review and reform is required to ensure our laws work as intended.

Scottish Law Commission Bills We urge parties to consider: There are several areas where consolidation would make the The Scottish Law Commission (SLC) • Increasing the rate of incorporation of law clearer and more operable. makes recommendations on how the SLC Bills and setting out early in the Relatively uncontroversial projects law can be simplified, modernised next Session plans and timescales for to consolidate existing legislation and improved, addressing existing the implementation of specific reports into laws which are clearer and more deficiencies and responding to • Taking forward as a priority work on accessible can significantly assist developments. It is an invaluable resource businesses and individuals navigate and a body we engage with and support Trust Law, Moveable Transactions and Cohabitation Law the legal environment they operate strongly. Work in recent Sessions to within, promoting growth and greater accelerate the incorporation of SLC Bills compliance with the law. is welcome, but a large volume remain unimplemented, including several with Post-legislative scrutiny and In other areas, legislation enacted in the potential to have a wide-ranging consolidation earlier Sessions needs to be reviewed to positive impact across our society and bring it in line with developments and economy. One clear principal of the rule of law is that ensure it continues to meet the original that laws must be accessible, intelligible, policy goals. A good example of this is The Delegated Powers and Law Reform clear and consistent. charity law, where we have identified Committee’s 2020 report ecommended over 20 areas of the Charities and Trustee Due to the volume and complexity improvements that could increase the Investment (Scotland) Act 2005 where of legislation passed by the Scottish rate of implementation of SLC Bills in reform could be beneficial to charities, Parliament since 1999, several incidences coming sessions. The Commission on donors, trustees and confidence in the of unintended consequences have Parliamentary Reform recommended a sector as a whole. formal mechanism for the Government come to light. This Session has seen a to alert Parliament to new SLC reports, particularly large volume of regulations set out initial plans to consider findings relating to Brexit and the passage of and introduce any legislation. We support emergency powers in response to We urge parties to consider: both recommendations, but where the Covid-19. We welcome the increased • Making a collective effort across definition of an SLC Bill forms a barrier to remit of the Public Audit and Post- Parliament to increase the rate of post- bringing forward legislation we would Legislative Scrutiny Committee to legislative scrutiny and place this on the also urge the Scottish Parliament to consider the impact and issues arising agenda across all subject areas devote time through other means to carry from the passage of specific legislation out long overdue work to modernise and in the previous Session, but this process • Undertaking projects to consolidate the consolidate our existing laws. needs to be stepped up as the Parliament law in areas of unnecessary complexity, and its legislative output continues to including in crofting law, environmental mature. law, agricultural law and the law of succession

• Reviewing charity law, last subject to significant legislation in 2005

www.lawscot.org.uk/2021priorities 24 Driving public Priority areas for law reform policy and law reform

Fatal Accident Inquiries Other policies and procedures We urge parties to: surrounding investigation into the The current legislation governing Fatal circumstances of a death would also • Commit to the delivery and Accident Inquiries (FAIs) was passed benefit from a comprehensive review, as implementation of coordinated and in 2016, but has not led to the major current practices can cause unnecessary updated legislation across adult improvements required to rebuild public distress for those connected with the incapacity, mental health, and adult trust in the system. FAIs are carried out deceased. As well as the FAI system, support and protection law and practice to examine sudden deaths, one of the the post-mortem process, overhaul of in the next Session most traumatic experiences imaginable role of COPFS in deaths, and the wider for people close to the deceased. The legislative frameworks relating to the responsibility for these investigations law on homicide and Electronic and remote signing of lies with the Crown Office and Procurator should be subject to review. We would documents Fiscal Service (COPFS) in accordance encourage consideration of the SLC’s with the requirements of Article 2 of the recommendations on culpable homicide Covid-19 accelerated moves towards European Convention on Human Rights once published as a matter of priority to acceptance of digital signatures. A move which states that “everyone’s right to life help with clarity in these important areas from ‘wet’ signatures to digital has clear shall be protected by law”. of law. advantages for legal practitioners and consumers and can be at least as secure These investigations must be robust and and binding. Emergency coronavirus cannot be rushed, and it can currently legislation included provisions allowing take several years between an incident We urge parties to consider: for the remote execution of notarial taking place and any decision by COPFS • Reforming the FAI system to reduce documents. There is a strong case to hold an FAI. That also affects those that this should become the norm in where the holding of an FAI is mandatory delays and increase transparency and effectiveness a post-pandemic, increasingly digital such as a death in police custody professional world to meet the changing or prison. The publication of an FAI • Review procedures surrounding post- needs of society. determination comes much later, even mortems, homicide and culpable in relatively straightforward cases. That homicide method of publication effectively allows for only minimal public scrutiny, with only We urge parties to consider: the last 50 determinations published in • Reviewing any legislative requirements date order by the Scottish Courts and Incapacity, mental health and adult for a relevant person to be physically Service. There is no systematic support and protection present when another person signs a search mechanism unless the name of the The Scottish Parliament established document, takes and oath or makes an deceased is known. Scotland as a world leader in adult affirmation or declaration FAIs should be held without long delays incapacity, mental health, and adult • Reviewing any legislative requirement and the death investigation process support and protection law and practice for ‘wet’ signatures with a presumption in Scotland needs to be transparent, with its legislation of 2000, 2003 and for the acceptance of secure digital effective and robust. There has been 2007. Excellent work is currently being signatures recent significant and repeated publicity undertaken on reviewing and updating and criticism made of the continual delays these areas of law in light of human rights in holding FAIs. This system and scrutiny and other developments, including process must be improved, otherwise emerging needs highlighted by the public confidence in the system will pandemic such as reform of deprivation continue to erode and the opportunity to of liberty situations. We are in danger of learn lessons from such deaths reduced or falling behind other jurisdictions in an area substantially impeded by delay. in which Scotland has recently led the way.

www.lawscot.org.uk/2021priorities 25 Driving public policy and law reform

Succession and the law of cohabitation laws or creating new legislation, but the as our rural economies recover from the Scottish Parliament’s legislative processes impact of Covid-19. The law of succession is one of our most were not designed with tax powers in fundamental bodies of law. It has been mind. subject to consultation and revision but significant issues remain, particularly We urge parties to consider: in cases of intestacy where no will has • Complete work begun in this Session on been properly prepared. It is important We urge parties to consider: the circular economy, grouse and deer that succession law is consolidated and • Taking forward work to explore the value management a new approach taken to bring forward of alternative legislative processes for reforms in this area in line with our recent amending devolved tax legislation to • Consolidating existing crofting law consultation response. allow a more strategic and efficient and making improvements relating to croft succession, the status of owner- There has been a significant growth in approach to the development of tax occupier crofters, statutory conditions the number of cohabitating couples and legislation of tenure and the definition of ‘crofting families in recent years. The • Conducting a post-implementation community (Scotland) Act 2006 contains provisions review of the Land and Buildings concerning cohabitants, but these raise Transaction Tax Additional Dwelling significant issues. Time limits on claims Supplement to increase clarity and for financial provision where cohabitation Compulsory purchase address unintended consequences and ends otherwise than by death; and for perceived unfairness Compulsory purchase of land and claims by the survivor against the estate property in the public interest is a of the deceased partner where a will has valuable tool for local authorities and not been created are problematic and other public sector bodies, for example practitioners report numerous cases Environmental and rural law to allow infrastructure development. As where these issues arise. In relation to environmental law, an area of law with significant impact on significant workstreams began during those whose property may be subject this session but have not reached a to purchase by the state, it is vital that We urge parties to consider: conclusion. Early progress in the new legislation is as clear, up-to-date and Parliament to progress work carried out transparent as possible. This is an area • Reviewing and reforming succession on the circular economy; grouse and deer of law where there is a clear need to law, including a fairer reflection of the management; and SEPA’s integrated modernise and reform legislation, status of cohabitants authorisation framework would lead to following the Scottish Law Commission’s considerable improvements in Scotland’s work in this area. management of resources in line with Taxation the National Performance Outcomes on environmental justice and supporting We urge parties to consider: The previous Sessions have seen the sustainable rural economies. first of distinct Scottish • Introducing legislation to consolidate, taxes, fundamentally changing public The law on agricultural and environmental simplify and modernise compulsory finances in Scotland. Tax laws are complex matters is complex. It has developed in a purchase powers and often require regular amendment piecemeal fashion and would benefit from to adapt to new policy direction and consolidation. In particular, crofting law is correct unintended consequences. unnecessarily complex and improvements Full parliamentary scrutiny is of vital would better support the rights and importance when amending existing tax sustainability of crofting communities

www.lawscot.org.uk/2021priorities 26 For further information, please contact: Tim Mouncer, Public Affairs Manager Tel: 07575 269470 Email: [email protected]

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