Our Priorities for the 2021 Scottish Parliament Elections
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Our
Priorities
for the 2021 Scottish Parliament Elections
www.lawscot.org.uk 1Foreword
With the 2021 Scottish Parliament 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 law 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 courts
So I introduce our priorities for the next small step on the way to reforming the and justice 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 laws
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 Brexit 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 Scotland. 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 solicitor 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 legal profession
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 2The Law Society and
our engagement
with Parliament
The Law Society of Scotland is the professional body for over 12,000 Scottish
solicitors, 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
engagement with the Scottish and United consistent with our regulatory and of legal services
Kingdom Governments, Parliaments, representative role for Scotland’s legal
profession, placing us at the heart of p.14 Boosting economic recovery
wider stakeholders and our membership.
civic Scotland and work to achieve p.18 Shaping Scotland’s legal
In seeking to influence the creation and the national 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 committee 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 3Our Priorities
p.6 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 Scots law
p.8 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
p.11 • Bringing forward a new Legal Services Bill
• Ensuring active engagement between Consumer Scotland and sectoral
regulators
• Introducing a Judicial Factors Bill
p.14 Boosting economic recovery
Removing barriers in the law to innovation and investment
• Introducing a Moveable Transactions Bill
• Introducing a Trust Law 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 4Our Priorities
p.18 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
p.20 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
p.23 Driving public policy improvement and law reform
Scottish Law Commission 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 crofting law
• Consolidating, simplifying and modernising compulsory purchase powers
www.lawscot.org.uk/2021priorities 5Ensuring respect for the
rule of law
www.lawscot.org.uk 6Ensuring 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 peace,
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
independence 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 7Protecting
access to
justice
www.lawscot.org.uk 8Protecting
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 9Protecting
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 court.
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
but it is crucial that everyone can • Reviewing the use of technology,
necessity for restrictive measures to
participate effectively. Measures that have particularly hearings by video, to ensure
protect health and the provision of
been introduced out of necessity will need that people are able to participate
financial support through furlough, social
to be reviewed as our recovery progresses effectively
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
different approaches might address these • Implementing a principles-based
and fairness across the full spectrum of
issues while also maintaining strong and approach to encourage all public bodies
services they provide and interventions
safe communities. to treat people with dignity, respect and
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 • Reviewing of the impact of the
criminal cases has increased significantly
principles to effectively underpin any pandemic on equalities and
with the time it takes for a criminal case
new balance of power between citizens relationships of power across society
to come to trial doubling. It is in the
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 10Modernising
regulation of
legal services
www.lawscot.org.uk 11Modernising 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; Scottish Government 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 Ombudsman 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 England, Wales 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 12Modernising 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 Court of Session 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 minor 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 13Boosting
economic
recovery
www.lawscot.org.uk 14Boosting
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 criminal law, court business has been significantly curtailed,
remote jury 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 English law.
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
economy. Removing this barrier is vital to ensuring
• 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 15Promoting 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 commercial law 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 England and Wales, 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 16Boosting
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 17Shaping Scotland’s
legal and
constitutional
future
www.lawscot.org.uk 18Shaping Scotland’s legal
and constitutional future
Scottish Independence and the UK/Scottish Constitutional Settlement
The question of Scottish independence 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 volume, variety and subject matter of
Current and future UK Governments and Parliament and may continue to be so
any future Scottish Government should legislation
now it has received Royal Assent. 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 19Enhancing the
diversity
of the legal
profession
www.lawscot.org.uk 20Enhancing 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 21Enhancing 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 tribunal judges 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 22Driving public policy and
law reform
www.lawscot.org.uk 23Driving 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 accessible can significantly assist
developments. It is an invaluable resource • Taking forward as a priority work on
Trust Law, Moveable Transactions and businesses and individuals navigate
and a body we engage with and support the legal environment they operate
strongly. Work in recent Sessions to Cohabitation Law
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
improvements that could increase the Due to the volume and complexity
Investment (Scotland) Act 2005 where
rate of implementation of SLC Bills in of legislation passed by the Scottish
reform could be beneficial to charities,
coming sessions. The Commission on Parliament since 1999, several incidences
donors, trustees and confidence in the
Parliamentary Reform recommended a of unintended consequences have
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
from the passage of specific legislation agenda across all subject areas
devote time through other means to carry
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 24Driving 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 culpable homicide 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 documents. There is a strong case
to hold an FAI. That also affects those • Reforming the FAI system to reduce
delays and increase transparency and that this should become the norm in
where the holding of an FAI is mandatory a post-pandemic, increasingly digital
such as a death in police custody effectiveness
professional world to meet the changing
or prison. The publication of an FAI needs of society.
• Review procedures surrounding post-
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
Incapacity, mental health and adult • Reviewing any legislative requirements
date order by the Scottish Courts and
support and protection for a relevant person to be physically
Tribunals Service. There is no systematic
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
support and protection law and practice • Reviewing any legislative requirement
and the death investigation process
with its legislation of 2000, 2003 and for ‘wet’ signatures with a presumption
in Scotland needs to be transparent,
2007. Excellent work is currently being for the acceptance of secure digital
effective and robust. There has been
undertaken on reviewing and updating signatures
recent significant and repeated publicity
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 25Driving 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
We urge parties to consider: • Complete work begun in this Session on
been properly prepared. It is important
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 • Consolidating existing crofting law
amending devolved tax legislation to
consultation response. and making improvements relating to
allow a more strategic and efficient
approach to the development of tax croft succession, the status of owner-
There has been a significant growth in
legislation occupier crofters, statutory conditions
the number of cohabitating couples and
of tenure and the definition of ‘crofting
families in recent years. The Family Law
• 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
Environmental and rural law other public sector bodies, for example
practitioners report numerous cases
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
The previous Sessions have seen the We urge parties to consider:
sustainable rural economies.
first devolution 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 26For further information, please contact:
Tim Mouncer, Public Affairs Manager
Tel: 07575 269470
Email: comms@lawscot.org.uk
Law Society of Scotland
Atria One, 144 Morrison St, Edinburgh, EH3 8EX
DX ED 1 EDINBURGH
Tel: 0131 226 7411
Email: lawscot@lawscot.org.uk
www.lawscot.org.uk
www.lawscot.org.uk 27You can also read
