Reforming the law on Scottish unincorporated associations and criminal liability of Scottish partnerships

The consultation document proposes reforming the law and seeks views on 2 topics:

• the proposal to attribute legal personality to unincorporated associations where they meet certain statutory criteria
• reform of the law on criminal liability of dissolved Scottish partnerships and their partners

We intend to address a loophole in Scots law that allows Scottish partnerships to escape prosecution for potentially serious offences by dissolving.

The commission has indicated that it supports the consultation process and will continue to work with the UK government to finalise a bill that it is hoped will come before Parliament within its current term.

The consultation document is based on work by the Scottish Law Commission (SLC) which led to a report and draft Bill 2009 on reforming the law on unincorporated associations in Scotland and the SLC report and draft Bill 2011 on reforming the law on criminal liability of dissolved Scottish partnerships and their partners.

There are also specific questions arising from the 2009 draft bill that the UK government has decided it should take views on. This is not to question the policy on attributing legal personality to unincorporated associations, rather to refine and fill in the detail to the proposals to ensure the provisions will successfully effect the change intended.

The consultation period closed on 9 July 2012. A total of 41 responses to the consultation paper were received. Of these:

• 18 were from those representing the interests of unincorporated associations (either UAs or umbrella bodies)
• 9 were from the legal profession or those with charity law expertise
• 3 were from local authorities
• 3 from central government bodies
• 3 were from representative bodies with an interest
• 5 were from individuals

There was wide support for taking forward the broad principles of the Scottish Law Commission’s proposals on unincorporated associations.

There was majority support for a right of relief for current office-bearers, a provision to restrict vexatious requests for documentation and for measures to restrict the automatic reversion of rights and liabilities upon losing Scottish Association with Legal Personality (SALP) status without dissolving.

There were mixed views on a number of the proposals, including the opt-out principle, lack of registration, sanctions and the prosecution of dissolved SALPs and unincorporated associations that were SALPs.

There was strong support for taking forward the commission’s draft bill on partnerships - although responses on this part of the consultation were light, they confirmed the results of the more extensive consultation carried out by the commission in 2011.