OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

Journal
Law Reform
In and out
of the Houses
Outwith the parliaments, representatives of the
Society’s Licensing Law Working Party gave
evidence to the Nicholson Committee on
reform of the liquor licensing regime and, in
particular, on amendments to the Licensing
(Scotland) Act 1976.
UK Parliament
The Proceeds of Crime Bill has progressed from
the House of Commons to its committee stage
in the House of Lords.This legislation will change
solicitors’ duties in reporting suspected money
laundering.The current subjective test based on
knowledge of the client will be replaced by an
objective test of whether a solicitor would
reasonably suspect funds to be the proceeds of
crime. There are also extended provisions for
criminal confiscation orders and, for the first
time, property will be recoverable through the
civil courts in the UK.
The Enterprise Bill will significantly change UK
competition law. It will give new powers and
status to the Office of Fair Trading, amend the
constitution and function of the Competition
Commission, create new cartel offences, permit
class actions under the EU Injunctions Directive
and amend the law of insolvency.
The Tax Law Committee is working with the ongoing
review of capital gains tax and the
consultation process on the Government’s
proposals to change stamp duty. The
Committee is also considering the Finance Bill
following on April’s Budget.
The Scottish Parliament
The Criminal Justice (Scotland) Bill is so wideranging
that many have compared it to a
Miscellaneous Provisions Bill. The content
includes public protection, victims’ rights, sexual
offences, prisoners, drugs courts, non-custodial
punishments, children (including the
controversial “smacking proposals”), evidence
and procedural issues, new provisions on
bribery and corruption, criminal records, local
authority functions and amendments to the
May 2002 Volume 47 No 5 52
The wheels of reform are turning full tilt and the Society’s law reform team
is busy working on the many Bills and consultations
going through the legislative mill.
Public Defence Solicitors scheme, police ranks,
jury matters and Northern Irish search
warrants. The debates on this Bill will be long
and involved and will impact on every criminal
law practice.
The Land Reform (Scotland) Bill is about to
enter its Stage 2 proceedings where
amendments may be proposed. The Society’s
team gave extensive evidence to Justice 2
Committee at Stage 1 and the Rural Affairs
Committee is drafting amendments for the
Committee’s consideration.
The Justice 1 Committee Inquiry into the
Regulation of the Legal Profession in Scotland
progressed with the recent publication of an
options paper for consideration by all involved
in the inquiry. The paper sets out the following
eleven discussion points:
1 The Committee is not in favour of the
option of a completely independent system and
believes that it would be more effective to
maintain the present system of joint regulation
with increased independence. Do you agree?
2 The Committee is aware of the practical
difficulties which could be associated with the
creation of a single gateway for all complaints.
Do you think that a single gateway should be
created? If so, how do you think that it would
operate in practice?
3 The Committee recommends enhancing
the powers of the Scottish Legal Services
Ombudsman as outlined in the paper (both in
relation to the Law Society of Scotland and the
Faculty of Advocates). Do you agree?
4 Whilst the Committee favours strengthening
the conciliation process, requiring firms to have
a complaints procedure, with a delegated
person to deal with complaints, it also
recognises that such a procedure could be
problematic for small firms and sole practitioners.
The Committee seeks views on how the
conciliation process could be strengthened in
practice.
5 The Committee is inviting views on whether
the professional bodies should be encouraged
to investigate small negligence claims within the
complaints procedure, rather than rejecting
these, and referring them to a solicitor.
6 In your view, should compensation be
offered for a complaint about an individual
solicitor’s conduct? If so, under which
circumstances?
7 The Committee favours increasing the
maximum level of compensation which a
solicitor can be ordered to pay a client in
relation to inadequate professional services with
provision for regular increases in the maximum
compensation. Do you agree? If so, what should
the maximum level of compensation be?
8 Do you think that the definitions of a
complaint could be amplified and clarified? If so,
how could this be achieved?
9 The Committee favours the introduction of
delegated powers to allow final decisions about
complaints to be made by Committees of the
Law Society rather than the Council. Do you
agree?
10 Are you of the view that lay involvement in
the complaints process for the Law Society of
Scotland and the Faculty of Advocates should be
increased? If so, how could this be achieved?
11 In your view, how should any recommended
changes to the system be funded? Should these
changes be funded by:
(a) the Government;
(b) the professional bodies; or
(c) both the Government and the
professional bodies?
The full options paper is on the news pages of
the Society’s website at www.lawscot.org.uk.
Comments from members on the discussion
points, the options paper or any other Bills or
consultations mentioned are welcome and
should be marked for the attention of Michael
Clancy and sent to:
e:
moiragoll@lawscot.org.uk