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Parliamentary Update 2 February 2012 Christine O’Neill Partner 0131 656 0286 christine.oneill@brodies.com

Referendum Race Under Starter’s Orders We have known since May 2011 that there would at some point in the life of the current Scottish Parliament be a referendum on the question of Scottish independence. Those with an interest have been warming up for the last several months but the race to a vote got firmly under way in January. It promises to be more of a marathon than a sprint, with the Scottish Government’s preferred date for the referendum being some time in the autumn of 2014. There is therefore plenty of time for argument, debate and discussion about the political, economic and cultural implications of separation or, in the event of a vote on ‘devolution max’, of greater autonomy within the United Kingdom. The legal and parliamentary issues promise to be no less interesting. There is nothing new in politicians seeking to use law to legitimise their own arguments or to undermine those of their opponents. It should therefore perhaps have been expected that the opening skirmish in the battle to win the referendum would be one about the legal foundation for the vote itself. The UK Government seized the initiative when it published its consultation paper on ‘facilitating a legal, fair and decisive referendum’ (see www.scotlandoffice.gov.uk/scotlandoffice/ files/17779-Cm-8203.pdf), arguing that “legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose”. Its

proposed solution is an extension of devolved powers to allow the Scottish Parliament to pass a referendum Bill but with those powers being made subject to conditions as to the timing of the poll and the format of the referendum questions. By contrast, the Scottish Government’s position is that Holyrood has sufficient powers under existing arrangements to pass a Bill and to hold a referendum at a time of its own choosing. Timing, and the form of question(s) put, are both expected to have a significant impact on the outcome - as is the voting age with the SNP keen to include 16 and 17 year olds who may be more likely, as a group, to vote Yes. In its own consultation document - ‘Your Scotland, Your Referendum’ (www.scotreferendum.com/consultation) – the Scottish Government advocates the asking of a single Yes-No question: “Do you agree that Scotland should be an independent country?” It also expresses the view - with which the UK Government disagrees - that the Scottish Parliament has, without doubt, the power to hold a referendum on what can be described as ‘devolution max’ or ‘independence lite’ depending on your point of view. Key to answering the question of the Scottish Parliament’s powers to hold the referendum is the application of complex provisions of the Scotland Act 1998. It provides that an Act of the Scottish Parliament is “not law” so far as any provision of it “relates to reserved matters”. Reserved matters - over which only Westminster has lawmaking powers - include “the Union of the Kingdoms of Scotland and England”. It is this reservation on which the UK Government relies.

The alternative view is that a referendum which does not (and could not) alter Scotland’s constitutional status cannot be said to ‘relate’ to reserved matters. That analysis relies in part on more detailed direction given by the Scotland Act. In particular, the courts are told that the question whether a provision relates to reserved matters is to be determined by reference to the “purpose of the provision, having regard (among other things) to its effect in all the circumstances”. Quite how that is to be interpreted - how to establish the purpose of a provision and the ‘other things’ which can be taken into account - is no easy task. It has been argued, however, that the referendum’s purpose is simply to gauge public opinion and that the Scottish Parliament is free to legislate on that basis. We are not privy to the advice which the Scottish and UK Governments have had on the legality of a referendum but we would expect that both will understand that there is, as we would say in the trade, some ‘litigation risk’ if a dispute arises about the lawfulness of a referendum Bill. That being the case, we very much expect a pragmatic, political solution to be found by way of a further extension of powers to the Scottish Parliament to put (at least this one aspect of) the legality of a referendum beyond doubt.

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Scottish Government consults on plans to reform post-16 education The future of Scotland's system of post-16 education is the subject of a recent Scottish Government consultation. The pre-legislative consultation paper, entitled "Putting Learners at the Centre – Delivering our Ambitions for post-16 education", follows last year's Green Paper on "Building a Smarter Future" and sets out the Government's plans for reform of the sector. The paper outlines proposals for a number of important policy changes including a proposal to guarantee a place in post-16 learning for all 16-19 year olds. The Government has also expressed the desire that this guarantee be extended to include all 20-24 year olds to the extent that public finances allow. In addition, the consultation paper proposes a new minimum income guarantee of £7,000 per annum for the poorest students in higher education. Other ideas mooted include proposals for the regionalisation of Scotland's colleges, the introduction of a new statutory duty on institutions to widen access to education and increased emphasis on ensuring a smooth transition from education into work. As the plans cover universities, colleges, skills and training they are likely to impact upon all those involved in the provision of post-16 education across Scotland.

However, one of the most striking proposals in the consultation paper may also prove to be one of the most overlooked. This is the proposal "to ask the Scottish Funding Council to develop, with universities, proposals to create a single, centralised Knowledge Exchange Office�. This Knowledge Exchange Office would have responsibility for identifying and commercialising potential IP emerging from Scotland's university sector. In recent years there has been a much increased emphasis on the importance of maximising the commercial impact of this research. Indeed, ensuring that the best and most innovative research emanating from Scotland's universities becomes commercialised can be crucial for ensuring the success of local enterprises which stand to benefit from the application of these new ideas. However, some have expressed concern that the proposal to centralise the management of these so-called 'technology transfer activities' could prove counterproductive. In his own response to the consultation, Will McIntosh, a Brodies partner who specialises in the Commercialisation of Technology and who has advised university technology transfer offices, expressed concern that a new centralised Knowledge Exchange Office could lead to the creation of more bureaucracy and be

Will McIntosh Partner 0131 656 0154 william.mcintosh@brodies.com

perceived as an outside organisation by academics and researchers. This could, in turn, have a negative impact on the identification of potential IP from within Scotland's higher education sector. In his response, Will also draws attention to evidence from the United States, Canada and the United Kingdom, which appears to indicate that devolving responsibility for knowledge exchange activities within regions and institutions has a positive effect on the identification of IP for commercial exploitation. This research further indicates that a decentralised structure is the most effective at encouraging an entrepreneurial culture among academics and researchers. The consultation closed on 23 December and the Scottish Government is now analysing the responses received and considering what further action to take. It has indicated that it expects to publish its official response to the consultation shortly, with a proposed Bill likely to go before the Scottish Parliament some time thereafter. For further details, please contact Will McIntosh or Colin McIntyre (contact details listed below).

Colin McIntyre Trainee Solicitor 0131 656 3705 colin.mcintyre@brodies.com


Current Consultations The Zero Waste Regulations The Rural Affairs, Climate Change and Environment Committee is calling for views on the Scottish Government's Policy Statement and Regulations (due to be laid in March). Click here to access the Policy Statement. The Regulations, which form part of the wider Zero Waste Plan, introduce a series of regulatory measures to maximise the quantity and quality of materials available for recycling; minimise the need for residual waste treatment capacity; move residual waste management up the waste hierarchy so as to extract resource value non-recyclable materials and create market certainty to support investment by businesses in the recycling, materials reprocessing and waste management sector. Currently there is no deadline for receipt of submissions and these can be made to racce.committee@scottish.parliament.uk Consultation on Rules of Court for Protective Expenses Orders in legal challenges to certain environmental decisions ("Legal Challenges to Decisions by Public Authorities Under the Public Participation Directive 2003/35/EC") This consultation seeks views on proposals for new Rules of the Court of Session to regulate the award of protective expenses orders in judicial review cases and statutory reviews in the Court of Session of decisions of public authorities falling within the scope of the Public Participation Directive 2003/35/EC (“the PPD”). It is proposed that the rules should strike a balance, within the requirements of Scotland's European obligations, to enable legitimate challenges to be brought without removing all cost risk to the petitioner and thereby encouraging spurious challenges. Responses due by 3 April 2012. The consultation paper is available here Consultation on Proposals for a Freedom of Information (Amendment) (Scotland) Bill December 2011 The Scottish Government seeks comments on proposals to amend the Freedom of Information (Scotland) Act 2002 to modify certain exemptions by reducing the period of time at which a record becomes 'historical'. Responses due by 8 March 2012. The consultation paper is available here Children's Hearings (Scotland) Act 2011 Consultations The Scottish Government is consulting on a number of proposed Orders, Rules and Regulations made under the Children's Hearings (Scotland) Act 2011 including: ▪ Regulations providing additional powers to Safeguarders (Children's Hearings (Scotland) Act 2011 - Section 34: Safeguarders: Regulations); ▪ Regulations improving the protection for vulnerable witnesses in the Children's Hearing system (see Vulnerable Witness Provisions in The Children's Hearings (Scotland) Act 2011, Including The Authentication of Prior Statements (Scotland) Regulations 2012); ▪ Regulations setting out the process for the chief social work officer when deciding whether to implement or not a secure accommodation authorisation or remove a child from secure accommodation (Children's Hearings (Implementation of Secure Accommodation Authorisation) (Scotland) Regulations 2012 ); ▪ Regulations allowing for an order made by a court in England, Wales or Northern Ireland to have effect in Scotland as if that order was a compulsory supervision order made in Scotland (Children’s Hearings (Scotland) Act 2011: Section 190: Effect of Orders outwith Scotland); and ▪ Rules revising the procedure of the Children's Hearing system (The Children's Hearings (Scotland) Act 2011: Procedural Rules). For more details click here: http://www.scotland.gov.uk/Consultations/Current/Q/page/0 Consultation on Housing Support for Homeless Households Local authorities will have a statutory duty under section 32B of The Housing (Scotland) Act 1987 (inserted by The Housing (Scotland) Act 2010) to assess the housing support needs of homeless applicants who are unintentionally homeless, or threatened with homelessness, and who are priority need. The local authority needs to ensure that housing support services are provided to those assessed as being in need of them. The purpose of this consultation is to seek views and proposals on making regulations on the requirement of local authorities to carry out an assessment for housing support for homeless applicants, or those who are threatened with homelessness, and who are priority need, and on the provision of the necessary housing support. Consultation ends 3 April 2012, available at http://www.scotland.gov.uk/Publications/2012/01/3716

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Current Bills Agricultural Holdings (Amendment) (Scotland) Bill This Bill is before the Rural Affairs, Climate Change and Environment Committee, currently at Stage 1 in Parliament. This Executive Bill was introduced by Richard Lochhead MSP on 31 October 2011 and its policy objective is to amend the law relating to succession and rent review in order to create a better environment for the letting of farmland to the tenant farming sector and to encourage new entrants into tenant farming. The Bill would change the definition of "near relative" for the purposes of succession to a farming tenancy to include a grandchild, introduce a prohibition of upward-only and landlord-only initiated rent reviews and make amendments to ensure that where rental payments are affected by a change in VAT, this should not prevent reference to the Land Court to determine the rent. Alcohol (Minimum Pricing) (Scotland) Bill This Bill is with the Health and Sport Committee at Stage 1. It was introduced by Nicola Sturgeon, the Deputy First Minister on 31 October 2011. The Bill makes provision about the price at which alcohol may be sold from licensed premises by introducing a minimum price of alcohol below which alcohol cannot be sold. The minimum price will be set according to a formula that considers the strength of the alcohol, its volume and the minimum price per unit. An attempt to introduce minimum pricing was first made in November 2009 but it did not receive sufficient support within the Parliament. Much of the evidence and rationale used in support of minimum pricing at that time continues to be relied upon by the Scottish Government. The Budget (Scotland) Bill This Bill is before the Finance Committee. It was introduced by John Swinney MSP on 19 January 2012 and is at an early stage. Criminal Cases (Punishment and Review) (Scotland) Bill This Bill is before the Justice Committee, currently at Stage 1 and was introduced by Kenny MacAskill on 30 November 2011. The Bill makes provision in two areas – firstly it will resolve a technical anomaly which arose following an Appeal Court case which resulted in discretionary life sentence or Order for Lifelong Restriction (OLR) prisoners being eligible for parole earlier than those serving fixed-length sentences. Secondly, the Bill will make special provision for the case of Abdelbaset Al-Megrahi (convicted of the Lockerbie bombing), providing a framework for the Scottish Criminal Cases Review Commission (SCCRC) on disclosure of information about the case. The Committee has called for written evidence on the Bill and its likely impact. All submissions should be provided by 12 noon on Wednesday 1 February 2012 to justice.committee@scottish.parliament.uk Land Registration etc. (Scotland) Bill The Bill is being considered by the Economy, Energy and Tourism Committee and is currently at Stage 1. The Bill was introduced by John Swinney MSP on 1 December 2011. The Bill is intended to modernise the land registration system in Scotland by providing for the eventual completion of the Land Register; increasing the triggers for first registration and making provision for voluntary registrations and Keeper-induced registrations; changing provisions that apply where there is a competition for title, meaning a person can recover their property rather than receive compensation from the Keeper of the Registers of Scotland; introducing a system of “advance notices” for conveyancing transactions that will remove the risk of losing title to a property between the settlement date and the registration date and introducing amendments to the Requirements of Writing (Scotland) Act 1995 to allow for electronic conveyancing and electronic registration. Long Leases (Scotland) Bill The Bill was introduced on 12 January 2012 by Richard Lochhead MSP. The Bill converts leases of more than 175 years into ownership, unless the tenant chooses to opt out (and excluding leases where the annual rent is more than £100). The key rationale behind this Bill is that the granting of a lease of more than 175 years effectively amounts to a transfer of ownership. Consultation is currently underway for this Bill, responses due by 3 February 2012 to racce.committee@scottish.parliament.uk Police and Fire Reform (Scotland) Bill This Executive Bill was introduced by Justice Secretary Kenny MacAskill MSP on 16 January 2012 and is currently at Stage eight fire and rescue services into a new single service. The Justice Committee is seeking views on the general principles of the Police and Fire Reform (Scotland) Bill, submissions should be provided by no later than midday on Tuesday 6 March 2012 to justice.committee@scottish.parliament.uk

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