The Scottish Government's 2016/17 legislative programme

With May's Scottish Parliamentary elections producing an SNP minority government, and in the wake of the shock Brexit vote in June, it seemed a little as if a legislative programme had fallen off the Holyrood agenda.

Last week, however, the Scottish Government published its legislative programme for the coming year and it includes some interesting proposed Bills for both lawyers and non-lawyers to consider.

Increased Devolution

The bulk of the programme reflects the need to give effect to the enhanced powers conferred on the Scottish Parliament by the Scotland Act 2016.

• Air Passenger Duty Bill (to set out the parameters of the newly devolved APD tax)
   
• Forestry Bill (to complete the devolution of forestry to the Scottish Ministers)
   
• Railway Policing Bill (to exercise the newly devolved competence over railway policing by folding the British Transport Police's Scottish operations into Police Scotland)
   
• Social Security Bill (to set out a framework for social security powers ahead of the establishment of a new Scottish Social Security Agency)
   
• Islands Bill (to increase the powers of island councils, protect the Na h-Eileanan an Iar Scottish Parliamentary constituency boundary and build on the work of the Island Areas Ministerial Working Group and consultation)
   
• Gender Balance on Public Boards Bill (to require positive action to be taken to ensure gender balance in non-executive appointments to boards of public authorities in Scotland, though the Scotland Act 2016 did limit the Scottish Parliament's powers in this area so that any action must still be consistent with the Equality Act 2010
  
  

Policy agenda

The following Bills will advance the Scottish Government's agenda in areas of policy that are 'traditionally' devolved.

• Child Poverty Bill (to replace repealed provisions in the Child Poverty Act 2010 concerning targets and strategies aimed at reducing child poverty)
   
• Domestic Abuse Bill (to create a new offence of psychological abuse and provide greater support to victims of domestic abuse)
   
• Limitation (Childhood Abuse) Bill (to remove the three-year time bar on personal injury claims where the pursuer was under 18 at the time of the abuse, providing that the abuse was suffered after 26^th September 1964)
   
• Wild Animals in Circuses Bill (to ban wild animals being shown or performing in travelling circuses)
  
  

Legal consolidation

These three Bills will implement a range of technical and practical legal reforms.

• Contract (Third Party Rights) Bill (to implement the Scots Law Commission's recommendations for the creation of third party rights in contracts)
   
• Housing (Amendment) Bill (to ensure that registered social landlords remain classified as private sector bodies, by decreasing the regulatory powers of the Scottish Housing Regulator in the event that the Office of National Statistics reclassifies RSLs as public bodies)
   
• Expenses and Funding of Civil Litigation Bill (to introduce sliding caps for success fee agreements in personal injury and other civil actions; allow damages-based agreements to be enforceable by solicitors; introduce qualified one-way costs shifting (QOCS) for personal injury cases and appeals, including clinical negligence, and specify the circumstances when the benefit of QOCS would not apply; allow for new court rules in respect of third party and pro bono funded litigation, and for legal representatives to bear the cost where their conduct in a civil action has caused needless cost; allow for the introduction of a multi-party action procedure in Scotland; and enable the Auditor of the Court of Session and Sheriff court auditors to become salaried posts within the Scottish Courts and Tribunal Service)
  
  

'INDYREF2'?

Despite the absence of a direct manifesto pledge in relation to a second independence referendum, in the wake of the Brexit vote Nicola Sturgeon said that the possibility of another referendum was "highly likely". The legislative programme therefore contains proposals to publish a draft Referendum Bill for consultation, to be ready for introduction "should the Scottish Government conclude - and decide to seek Parliament's agreement - that independence is the best or only way to protect Scotland's interests in the wake of the EU referendum".

The program is (perhaps deliberately) a little vague on whether the Scottish Government would seek the consent of the UK Parliament / Government to the Scottish Parliament legislating for a referendum, as happened in respect of the 2014 referendum. However, the inference is that they would not, which would be likely to result in any referendum legislation being challenged either before or after it receives Royal Assent (for more on that process see our series of posts - Part 1, Part 2, Part 3 and Part 4).

It is of course the detail of these Bills that will be key, and we will be keeping a close eye on the progress of the legislative programme as Bills are introduced.