Scottish Law Commission (Reports)

Chairman's foreword

In accordance with the provisions of the Law Commissions Act 1965, I am very pleased to present the Scottish Law Commission's Annual Report for 2012. This is the 47th Annual Report but it is the first report which I will have the privilege to submit to the Scottish Ministers as Chairman of the Commission.

In June 2012 I took office as Chairman, having been appointed by Kenny MacAskill, the Cabinet Secretary for Justice. I regard this as a great privilege and will continue to use the word 'Chairman' which has such an honourable history at the Commission. I am very conscious of the challenge of following so many distinguished lawyers commencing with the Rt Hon Lord Kilbrandon and including senior judicial colleagues with whom I have worked, the Rt Hon Lord Gill and the Rt Hon Lord Eassie. I am particularly grateful to Lord Gill who, in his office as Lord President, continues to support law reform work.

I would also like to pay tribute to the work of my predecessor, the Hon Lord Drummond Young who demitted office in December 2011. He continued to support the Commission as Acting Chairman until arrangements could be made for the appointment of a new Chairman. The Commission are also very grateful that, after return to full-time judicial duties, he has continued with his work on the Commission's project on the law of trusts. This project, which is now almost completed, will make recommendations for a complete overhaul of the legislation governing trusts in Scotland with the object of reflecting current best practice and the best international standards. Lord Drummond Young who has extensive expertise in this area of law has made a very valuable contribution to this important project which is part of the Commission's work to modernise Scots private and commercial law. On behalf of the Commission, I would like to thank Lord Drummond Young for all his work over many years and the contribution which he has made to the reform of Scots law.

The Commission have always had a judge as Chairman and since 1996 the appointment has been part-time allowing the Chairman to carry out judicial duties also. This means that the Chairman continues to be very involved in the practical application of the law and exposed to some of the difficulties which end up in expensive litigation. The wide-ranging work which I continue to do as a judge both in civil and criminal law and at first instance and appeal is very important to my work as Chairman.

My vision of the Commission is not as an academic institute but I value the strong academic tradition of the Commission which is reflected in the many reports. I consider that the role and value of the work of the Commission is helped by the Commissioners having a detailed understanding of the practical application of the law and problems which arise in the various areas of the law which are considered by the Commission. I will encourage all Commissioners and staff to actively engage with the public, practitioners, pressure groups and people with relevant policy and legal expertise. I have been actively involved in the Scottish Justice Leaders Forum. This provides an opportunity to engage with many people working in diverse areas which assists me with a more general understanding of practical difficulties in the law which they require to operate within and apply in carrying out difficult work.

My first involvement on Commission work with the public was during a consultation process which took place as part of the prescription and title to moveable property project. That project is now successfully completed. The Report and draft Bill has attracted a great deal of support and the Commission hopes that legislation will follow soon.

The writing of our discussion papers and reports is done in our office but law reform is a process in which we must engage with the wider world. The Commission has for long sought to do that. I will certainly encourage that process and also look for new and improved ways to develop and carry forward law reform projects within a reasonable time.

With the assistance of the lead Commissioners, I am very pleased to report that in 2012 the Scottish Parliament passed 2 major Acts which were based on work and Bills produced by the Commission. These are the Land Registration etc (Scotland) Act 2012 and the Long Leases (Scotland) Act 2012. In the UK Parliament I can record a similar success resulting from a joint Report which was the basis of the Consumer Insurance (Disclosure and Representations) Act 2012.

When I was appointed as Chairman, the Commission were about halfway through their Eighth Programme of Law Reform. That meant there were a number of major projects which were at different stages of development. At Commission meetings, which are held regularly, all the work projects are reviewed and discussed at appropriate stages. The details of the current projects are set out later in this Report.

There were some reports published in 2012 prior to my appointment such as the Report on Similar Fact Evidence and the Moorov doctrine.

During 2012 the Commission published 2 joint Reports with the Law Commission for England and Wales. The first was the Nineteenth Report on Statute Law Repeals which is now an Act passed by the UK Parliament. The second was the Report on Consumer Redress for Misleading and Aggressive Practices.

The Commission also issued Discussion Papers on Adults with Incapacity and on Formation of Contract. With the Law Commission for England and Wales, the Commission issued joint Discussion Papers on Insurance Contract Law: the Business Insured's Duty of Disclosure and the Law of Warranties; and Regulation of Health Care Professionals. The Commission also published for the trust project, a Consultation Paper on Public and Charitable Trusts: Amalgamation of Functions and Creation of Common Investment Funds. With the Law Commission for England and Wales we also published an Issues Paper on Unfair Terms in Consumer Contracts: A New Approach?

I am very conscious that, although our work is not designed to be an academic exercise, the reports of the Commission are often referred to by academics as well as by counsel and judges. We welcome that and are pleased that our research and analysis of the law often has practical utility even if not formally implemented in legislation. But I see our major task as reforming the law by way of legislation.

Since establishment of the Scottish Parliament by the Scotland Act 1998, we have dealt with Scots law issues in relation to both reserved and devolved matters. Much of our work is directed at areas of Scots law which are devolved but there is an overlap on many occasions with reserved matters which require to be addressed. There are also significant projects which relate to reserved matters in which the Law Commission for England and Wales may take the lead but we require to provide considerable assistance and resources to ensure that Scots law and the practical effects in Scotland are assessed and taken into account in any recommendations for change and drafting proposed legislation.

Because of our focus on legislative reform, I am wholly supportive of the Commission's practice which is to work closely with Ministers and Parliamentarians and with relevant Government policy officials and lawyers. I appreciate the support for drafting Commission Bills provided by Scottish Parliamentary Counsel. I am grateful to Roseanna Cunningham, the Minister for Community Safety and Legal Affairs, in particular for agreeing to regular meetings and fostering good communications at Government level. I should also record the support and interest which has been provided by the Justice Committee of the Scottish Parliament in 2012 who have taken a keen and informed interest in the work of the Commission and in the implementation of our reports. The Commission has a good record of co-operation with governments of all political reflection. I will continue to encourage such co-operation and facilitate communication with members of both Parliaments of every political persuasion. I recognise, of course, that governments always have their own agenda with their own political and policy priorities. Nevertheless, it is essential not only for a vibrant economy but also for the creation of a fair and modern society that our laws are modernised and kept up-to-date.

No legislation proposed by the Commission was introduced in 2012 in the Scottish Parliament but I hope that both the UK and the Scottish Parliaments will act to take forward Commission reports and draft Bills in 2013.

One way in which to promote legislation which is not politically controversial but is necessary and useful is to provide a special Parliamentary procedure to consider such Commission Bills. I would very much welcome such a procedure at the Scottish Parliament at Holyrood. Such a procedure would increase the Parliament's legislative capacity for law reform. We support the establishment of some such system and have been working actively with the Scottish Government and Parliamentary officials to try to achieve this.

The Commission has also worked proactively with the UK Government. I would like to thank in particular the Advocate General for Scotland, Lord Wallace of Tankerness, the Scotland Office and officials. The Advocate General has worked with the Commission to bring forward legislation to implement the Commission's Report and Bill on the Criminal Liability of Partnerships project. I was pleased to be able to attend with the Advocate General the All Peers Briefing Session when the Bill was discussed in some detail. This legislation was made possible by the use of a special procedure for Law Commission Bills in the House of Lords. This is a relatively new procedure. It is the first time the procedure has been used for a Bill for Scotland promoted by this Commission alone. I very much welcome this development and hope that other suitable Bills, such as the Commission's Bill relating to Unincorporated Associations, might be taken forward in this way in the future.

In December 2012, the Commission received a reference both from the Scottish Government and from the UK Government in relation to an electoral reform project. This project is to be a tripartite project with the Law Commissions for England and Wales and Northern Ireland. It is a major project designed to extend over a number of years. I am acting as the lead Commissioner on this project which I anticipate will be the focus of considerable interest.

The Commission has always had strong links with other law reform bodies around the world and particularly with the Law Commissions in England and Wales, Northern Ireland, Ireland and Jersey. Shortly after my appointment I attended meetings in Dublin with representatives of the other 4 Commissions. This was very useful to me at the start of my work.

The Commission has regular meetings with Commissioners and officials from the Law Commission for England and Wales in relation to joint projects. The former Chairman, the Rt Hon Lord Justice Munby was succeeded by the Rt Hon Lord Justice Lloyd Jones and I am very grateful to both Chairmen for their co-operation and assistance to me and to the Commission.

In conclusion, on behalf of the Commissioners, I want to praise the staff for their enthusiasm and diligence. The Commissioners work with a dedicated team and also work closely together as Commissioners. I thank them all for their help and support.

LADY CLARK OF CALTON

Chairman

Publications 2012

Implementation of our reports 2012

Under the Law Commissions Act 1965, our statutory function is to provide independent advice to Government on the reform of Scots law. Our recommendations are contained in reports, usually accompanied by a draft Bill containing provisions which would give effect to our recommendations. Our reports are submitted to the Scottish Ministers, or to UK Ministers where the subject matter involves areas of law reserved to the UK Parliament.

Implementation of the draft Bills annexed to our reports is a matter for the Scottish Government and Scottish Parliament or, where appropriate, the UK Government and UK Parliament.

During 2012 we continued our work with the Scottish Government and the UK Government in relation to Commission reports which have not so far been implemented.

We are grateful for the significant interest in implementation of our reports taken during 2012 by the Justice Committee of the Scottish Parliament. This resulted in correspondence during the summer between the Convener of the Justice Committee, and the Cabinet Secretary for Justice, regarding implementation of outstanding Commission reports.

We also worked with Government towards improving legislative planning for implementation of law reform measures; and with the Scottish Parliament to expand the capacity of the Parliament to enact law reform recommendations. We regard this work as an important part of our role in promoting law reform.

Acts passed by the Scottish Parliament in 2012

Land Registration etc. (Scotland) Act 2012

The Land Registration etc. (Scotland) Act was passed by the Scottish Parliament on 31 May 2012 and received Royal Assent on 10 July 2012. The Act implements recommendations contained in our Report on Land Registration, published in February 2010. The Act is heavily based on the draft Bill in our Report and also contains additional provisions, for example relating to the use of electronic documents.

Long Leases (Scotland) Act 2012

The Long Leases (Scotland) Act 2012 was passed by the Scottish Parliament on 28 June 2012 and received Royal Assent on 7 August 2012. It implements recommendations in our Report on Conversion of Long Leases published in December 2006.

Bills introduced in the Scottish Parliament in 2012

There were no Bills introduced in the Scottish Parliament in 2012 implementing Commission Bills.

Act passed by the United Kingdom Parliament in 2012

Consumer Insurance (Disclosure and Representations) Act 2012

The Consumer Insurance (Disclosure and Representations) Act 2012 was passed by the UK Parliament on 6 March 2012 and received Royal Assent on 8 March 2012. The Act gives effect, with minor modifications, to the recommendations in the joint Report by the Scottish Law Commission and the Law Commission for England and Wales on Consumer Insurance Law: Pre-Contract Disclosure and Misrepresentation, published in December 2009.

Bills introduced in the UK Parliament in 2012

Partnerships (Prosecution) (Scotland) Bill

The Partnerships (Prosecution) (Scotland) Bill was introduced in the House of Lords on 6 November 2012 and is proceeding through Parliament following the special procedure for the consideration of Law Commission Bills.

The Bill is based upon the draft contained in the Commission's Report on Criminal Liability of Partnerships in 2011.

Statute Law (Repeals) Bill

The Statute Law (Repeals) Bill was introduced in the UK Parliament in October 2012. The Bill was based on the draft Bill contained in the joint Report by the Law Commission for England and Wales and the Scottish Law Commission published in April 2012. The Bill has now been enacted as the Statute Law (Repeals) Act 2013.

Government responses to our recommendations

Interest on Debt and Damages

The Scottish Government wrote to the Commission in June 2012, in relation to the recommendations of the Commission in our Report on Interest on Debt and Damages in 2003. The Government indicated that they do not intend to implement the recommendations relating to contractual debt; but would consider the provisions on interest and damages.

The law of damages

On 19 December 2012 the Scottish Government published a consultation paper on Civil Law of Damages: Issues in Personal Injury.

The consultation seeks views on aspects of the Commission's proposals for reform of the law on damages for psychiatric injury, the law on prescription and limitation (also known as "time bar") for actions for personal injury and a range of related issues such as the discount rate; interest on damages and periodical payments.

The proposals come from three Commission Reports: Damages for Wrongful Death in 2008, Damages for Psychiatric Injury in 2004, and Personal Injury Actions: Limitation and Prescribed Claims in 2007.

Prescription and Title to Moveable Property

We are waiting on a formal response from the Scottish Government to our Report published in May 2012.

Similar Fact Evidence and the Moorov Doctrine

We are waiting on a formal response from the Scottish Government to our Report published in May 2012.

Citations in 2012 of Commission work

There are further indications of the impact and value of the Commission's work, aside from implementation of our recommendations. The Commission's work is widely quoted in court judgments, in academic journals and in the media.

Our monitoring service picked up in 2012, 22 UK court judgments citing or discussing Commission publications; and 57 citations in articles in legal journals.

In the UK national and regional newspapers there were 48 references to the Commission and our work.

While any views expressed may or may not support the Commission and our recommendations, this information does reflect the level of attention given to the Commission in these contexts.

Law reform projects

The Commission's law reform work stems from our programmes of law reform and references from Ministers. We also undertake projects jointly with the Law Commission for England and Wales, and with the Northern Ireland Law Commission where the subject matter relates to Scotland as well as other parts of the United Kingdom.

Projects included in our Eighth Programme of Law Reform

During 2012 work continued on projects under our Eighth Programme of Law Reform which covers the period from 2010 to the end of 2014.

Item 1 - Moveable transactions

Project Team

Dr Andrew Steven, Commissioner

Alastair Smith, Project Manager

Scott McGeachy, Legal Assistant

This is a medium-term project in our Eighth Programme of Law Reform.

The project involves a review of the law on (i) outright transfer (assignation) of incorporeal moveable property (ii) security over incorporeal moveable property and (iii) security over corporeal moveable property. Thus book debts (money owed but unpaid), loan books (sums due on mortgage, credit cards, car loans etc), intellectual property rights (patents etc), stock in trade, and equipment (vehicle fleets etc) all fall within the scope of the project. The project does not cover the transfer of corporeal moveable property, a subject that is mainly covered by the Sale of Goods Act 1979.

All three areas (assignation, security over incorporeal moveable property, and security over corporeal moveable property) are important to the smooth running of the Scottish economy but in all three areas Scots law appears to be out of date and insufficiently business-friendly. This may place Scottish businesses at a competitive disadvantage and lead to the loss of legal, financial and commercial business to England and elsewhere.

We published a Discussion Paper on Moveable Transactions in June 2011. The Paper considered the current law, identified its shortcomings, and suggested possible ways forward. Other legal systems were looked at, including the model that originated in the USA (Article 9 of the Uniform Commercial Code) and which has now been adopted (with some variations) in a number of other countries including Australia, Canada and New Zealand. Although the Discussion Paper concluded that a wholesale adoption of this model would not be appropriate, it was suggested that Scots law would benefit from adopting some of its ideas.

The Discussion Paper proposed that there should be a new type of security right that could cover both corporeal and incorporeal moveable property. There would be a new online Register of Moveable Transactions, in which the security right would be registered. The new register could also be used to register transfers of financial rights, for example in securitisations and factoring.

Nearly 40 responses were received to the Discussion Paper. Following the end of the consultation period, we have conducted a number of meetings with interested parties to discuss the issues raised by the consultation responses. These discussions, together with the consultation responses themselves, will inform the report and draft Bill which we plan to publish in 2014.

Item 2 - Trusts

Project Team

The Hon Lord Drummond Young,

Consultant

Charles Garland, Project Manager

Lorna MacFarlane, Legal Assistant

This is a major long-term project which aims to replace much of the current legislation, including the Trusts (Scotland) Act 1921, with a new statute designed for the present and future uses to which trusts are or may be put. The range of situations in which trusts are commonly used in Scotland and elsewhere has changed very considerably since the current legislation was framed in the first quarter of the last century, and this is particularly true in the investment and financial services sectors and in commerce where trusts can be used as an important element in a transaction. We have had this at the forefront of our minds when preparing some of the more recent Discussion Papers. Also significant is the fact that many other jurisdictions, both "onshore" and "offshore", have modernised their trusts laws in recent years. Not only have we drawn heavily on their legislation where we consider it appropriate but we recognise that, in an internationally competitive market, it is clearly a great advantage to have a trusts statute which is modern in its outlook, language and coverage. By having this aim in mind in the course of our review, we trust that the fruits of our project will not only benefit domestic advisers and their clients but may also serve to attract inward business to Scotland.

Our project has been long-running: we have published eight Discussion Papers between 2003 and 2011 as well as two short Consultation Papers (in 2011 and 2012). In addition we published a Report in 2007 on the Variation and Termination of Trusts. We are now preparing a report and draft legislation which will cover almost all of the topics on which we have consulted. (The significant exception is the subject matter of our Discussion Paper on the Nature and Constitution of Trusts.) Work is well advanced and we plan to publish our report during 2013.

Item 3 - Judicial factors

Project Team

Patrick Layden QC TD, Commissioner

Gillian Swanson, Project Manager

Joanna Bain, Legal Assistant

Our project on judicial factors has been carried forward into our Eighth Programme of Law Reform.

A judicial factor, who can be appointed in a variety of circumstances, is someone appointed by the court to look after or gather in and distribute property belonging to someone else, often when there is no other course of action available. In practice, most judicial factors are solicitors or accountants, although anyone can be appointed. The law in this area is governed mainly by 19th century legislation which is so out of date that it is no longer fit for purpose.

Our Discussion Paper on Judicial Factors was published in December 2010. It put forward two options for reform. The first was to keep the existing structure but to modernise it and make it more efficient by means such as updating and clarifying the powers and duties of judicial factors. The second was more radical in that it proposed the establishment of a new public official who would carry out all judicial factory work unless the court wished to appoint someone else. As our consultation process showed support for the first option only, we are working with interested parties towards modernising and simplifying the current law relating to judicial factors with a view to publishing a report and draft Bill in the first half of 2013.

Item 4 - Homicide

Project Team

Patrick Layden QC TD, Commissioner

Alastair Smith, Project Manager

Joanna Bain, Legal Assistant

Our Eighth Programme includes a review of the law on homicide. We have started researching the law of Scotland as well as the law of other countries with a view to working on a discussion paper during the course of 2013.

Item 5 - Criminal liability of partnerships

Project Team

Patrick Layden QC TD, Commissioner

Alastair Smith, Project Manager

Our Report on Criminal Liability of Partnerships was published in December 2011. A Bill to implement the Report, the Partnerships (Prosecution) (Scotland) Bill, was introduced in the UK Parliament in November 2012.

Item 6 - Law of contract in the light of the Draft Common Frame of Reference

Project Team

Professor Hector MacQueen,

Commissioner

Charles Garland, Project Manager

Lorna MacFarlane, Legal Assistant

Our review of contract law is a long-term project under our Eighth Programme. We began by publishing a Discussion Paper on issues of interpretation (2011) and followed it with a Discussion Paper on formation of contract in March 2012.

We received a number of helpful responses to the consultation from a variety of interested parties. Taking them into account, and being aware of a strong desire amongst practitioners for clarity on the practice known as execution in counterpart, we have concentrated our efforts on preparing a report and short draft Bill to meet that demand. Execution in counterpart is typically of use where a multi-party document is to be signed, so as to give it legal effect, by parties who are in different parts of the country or of the world. The document is distributed to all parties who then sign their own copy and deliver it to the other parties. This contrasts with what is sometimes termed the traditional signing ceremony at which all parties (or their agents) gather together into the same location and all sign a single copy of the document. By contrast with Scots law, English law is seen as much more accommodating towards execution in counterpart and there is a strong desire on the part of practitioners, especially those involved in commercial or cross-border work, for a clear and effective equivalent in Scots law.

We held a seminar at the University of Edinburgh at the end of November 2012 on our proposals and we were very pleased with the active participation of many practitioners and others. We have since followed this up with detailed discussions with representatives of a number of commercial law firms. This has allowed us to refine our ideas and we anticipate publishing our report on execution in counterpart, together with a draft Bill, around Easter 2013.

Our Discussion Paper on formation of contract discussed topics other than execution in counterpart: for example the "postal acceptance rule" and the "battle of the forms" and also some ideas for digital execution using electronic signatures. We will return to these topics in a future report.

We have also begun work on a Discussion Paper on remedies for breach of contract, which will also cover penalty clauses. We are minded to divide our consideration of this topic into two parts, the first (on which we have done most work to date) concerns the self-help remedies of rescission and retention and the second of which will deal with the judicial remedies of damages, specific implement and interdict. Looking to the future, our project will cover an examination of third party rights.

Item 7 - Adults with incapacity

Project Team

Ms Laura Dunlop QC, Commissioner

Dr Heike Gading, Project Manager

Susan Robb, Solicitor

As part of our Eighth Programme we are continuing to review the law on adults with incapacity, currently set out in the Adults with Incapacity (Scotland) Act 2000.  In particular, we are addressing deprivation of liberty in residential care, when individuals lack the capacity to consent to restrictive measures to which they are subject, leading to possible breach of Article 5 of the European Convention on Human Rights.

Our Discussion Paper was published in July 2012, together with a summary version and an easy read leaflet.  An important aspect of the Discussion Paper was the examination of how the law in this area has developed in England and Wales, where a new scheme has been introduced to govern deprivation of liberty of adults with incapacity.  This scheme has already generated a considerable volume of litigation.  We also found it useful to examine current law and law reform in other countries, especially the proposals for change in the law of guardianship made by the Victorian Law Reform Commission in Australia.  With the Hastie Stable of the Faculty of Advocates, we held a seminar on the issues in Edinburgh in September and were pleased to meet delegates from around Scotland.  The Discussion Paper has triggered a wide and varied range of responses for which we are very grateful. We are analysing the responses in order to formulate policy on the issues raised in the project.  After doing so, we will prepare a report with our recommendations.

We continue to debate the central and challenging issue of defining deprivation of liberty in relation to people who lack capacity to consent to residential arrangements, but require care in such settings. Our report will also consider the requirements for, and effect of, the consent of substitute decision-makers to any arrangements made, and the issue of deprivation of liberty for people without capacity who are admitted to hospital for treatment.

Item 8 - Compulsory purchase

Project Team

Patrick Layden QC TD, Commissioner

Dr Andrew Steven, Commissioner

Lesley Mure, Project Manager

Joanna Bain, Legal Assistant

The Eighth Programme includes a long-term project to examine the law and practice of compulsory purchase in Scotland. It seems inevitable that there will continue to be circumstances in which it is necessary for private property to be acquired compulsorily in the public interest. As long as compulsory purchase is considered to be a necessary process, it is in the interests of all those affected for the law to be clear, accessible and up-to-date.

But in Scotland the underlying legislation in relation to compulsory purchase is generally considered to be antiquated and obscure, with much of it dating from the 19th and early 20th centuries. There are a number of difficult issues relating to both the procedure for compulsory purchase and compensation.

In 2011 the Scottish Government published updated guidance on the existing procedures in two circulars on compulsory purchase orders and the disposal of surplus government land under what are known as the Crichel Down rules.

Various reforms have been made to the law of compulsory purchase in England and Wales, most recently by the Localism Act 2011.

Following our preliminary work in 2011, we have started work in earnest on the project. We had two very helpful advisory group meetings with practitioners and academics in June. Mr Layden gave a presentation on the Commission's project at the inaugural conference of the Scottish Branch of the Compulsory Purchase Association in October. Mr Layden and Mrs Mure also led a workshop on issues relating to compensation at the conference. In November Mr Layden gave a presentation on the Commission's project at a conference on compulsory purchase orders organised by Wright, Johnston & Mackenzie LLP and was a panel member for a workshop at that conference on how the law might be reformed.

We have received much support for the project from practitioners and academics during 2012. We hope to make substantial progress towards a discussion paper during 2013.

Item 9 - Heritable securities

Project Team

Dr Andrew Steven, Commissioner

Alastair Smith, Project Manager

Scott McGeachy, Legal Assistant

We intend to begin a review of the law of heritable securities during our Eighth Programme.

A heritable security is a security over heritable property (such as land and buildings) in respect of a debt. (The equivalent term in English law, "mortgage", is often encountered.)

Consolidation and statute law repeals

Consolidation

Project Team

The Hon Lady Clark of Calton,

Chairman

Susan Sutherland, Project Manager

Susan Robb, Solicitor

In terms of the Law Commissions Act 1965, one of our functions is to undertake work on consolidation of legislation. This work involves preparing a draft Bill to bring together earlier enactments on an area of law. This has the benefit of making the legislation easier to use. Instead of having to look up several Acts covering a number of years on a particular matter, the user has to look up only one Act. Consolidation is also an important way of tidying up the statute book.

From time to time we assist the Law Commission for England and Wales with preparation of consolidation Bills. Joint consolidation projects relate to legislation applying to Great Britain or the United Kingdom. The consolidation Bills are introduced in the UK Parliament but in so far as they include matters within the legislative competence of the Scottish Parliament require the approval of that Parliament before introduction. At present we have no joint consolidation projects with the Law Commission.

Bankruptcy legislation

We continued work in 2012 on preparation of a Bill to consolidate the legislation relating to bankruptcy in Scotland.

The Bankruptcy (Scotland) Act 1985 is the main piece of legislation governing bankruptcy. In recent years the Act has been heavily amended and much relevant material is also to be found in subordinate legislation. The aim of our work is to produce a Bill bringing the existing provisions together into a new and more accessible legislative framework.

Work on our report is nearing completion. The report will contain a number of recommendations for amendments to the 1985 Act. The amendments are intended to remove anomalies and to omit provisions that are no longer of any practical utility.

The draft Bill which will be included in the report would be for the Scottish Parliament to enact. But some of the provisions consolidated would require to have effect outwith Scotland. An order under section 104 of the Scotland Act 1998 Act would be required to supplement any Consolidation Act resulting from the draft Bill and complete its restatement of bankruptcy law. The making of such an order would be a matter for UK Ministers and for the UK Parliament.

In its Programme for Government 2012-2013, published in September 2012, the Scottish Government announced its intention to introduce a Bill to modernise bankruptcy law. It would be possible for the recommendations in our forthcoming report to be implemented as part of that Bill. This approach might enable the Commission's consolidation Bill to be taken forward subsequently as a "straight" consolidation (without amendments to give effect to Commission recommendations).

We expect to publish our report in the first half of 2013.

Statute law repeals

Project Team

The Hon Lady Clark of Calton,

Chairman

Susan Sutherland, Project Manager

Susan Robb, Solicitor

Another of our functions under the Law Commissions Act 1965 is to recommend the repeal of obsolete legislation. We undertake this work jointly with the Law Commission for England and Wales.

The purpose of our work is to remove obsolete and otherwise unnecessary legislation from the statute book. This process helps to simplify and modernise our law, making it more intelligible. It also saves time and costs for lawyers and others working with legislation.

In April 2012 we published our latest joint Report on Statute Law Repeals. The Report included a draft Bill. The Report was the nineteenth such Report to be published by the Commissions since 1965.

The Bill annexed to the Report was the largest such Bill recommended by the Commissions since 1965, proposing the total repeal of more than 800 Acts, and the partial repeal of 50 other Acts, covering a range of legislation. The Scottish repeals included 16 expired Acts passed between 1798 and 1828 relating to the imposition of a duty of two pennies Scots on the sale of ale, beer or porter in certain parts of Scotland. They also covered five Acts authorising railway projects in Scotland that were subsequently abandoned.

The Bill was introduced in the UK Parliament in October 2012. Members of the joint team gave evidence to the Joint Committee during the passage of the Bill. The Bill was subsequently approved without amendment and received Royal Assent on 31 January 2013.

Work is now underway on researching possible repeals for the next joint report which is likely to be completed in 2016. As is our usual practice we will undertake full consultation on the proposals as work is completed on each area of legislation.

Promoting law reform

The Commission liaises with Ministers, Government and other bodies to plan for law reform work including implementation of Commission reports. We work closely with Scottish Ministers and the Scottish Government on devolved matters, and with the UK Government, including the Scotland Office, and the Advocate General for Scotland and his Office, on reserved areas of Scots law.

As part of the wider work of promoting law reform in Scotland, Lady Clark is meeting with the Justice spokespersons of the main political parties represented in the Scottish Parliament.

The Commission continues to have close links with the legal profession in Scotland. We are indebted to members of the profession who serve as members of our advisory groups on law reform projects, and who contribute to our consultations; in particular for the practical experience of the law that these members contribute to the law reform process.

In November 2012, Commissioners and our Chief Executive met with the Convener and members of the Law Reform Committee of the Law Society of Scotland, and the Director of Law Reform and members of the Law Reform Department. We discussed current and future law reform work.

Lady Clark was invited to deliver a speech on law reform and the work of the Commission at the annual conference of the Scottish Legal Action Group (SCOLAG) in September 2012.

The Commission also appreciates our links with the Law Schools in Scotland, and the contribution that legal academics make to our work. We value the seminars on our projects hosted by the universities.

The Commission enjoys close contact with other law reform bodies; in particular the Law Commission for England and Wales and the Northern Ireland Law Commission, with whom we carry out joint law reform projects. We have regular contact also with the law reform bodies in Ireland and in Jersey. Lady Clark and our Chief Executive, Malcolm McMillan, attended the annual conference of the law reform bodies of Scotland, England and Wales, Ireland, Northern Ireland and Jersey, hosted by the Law Commission of Ireland in Dublin in July 2012. The President of Ireland, Mr Michael D Higgins held a reception for the delegates at the conference.

at the President's Official Residence in Phoenix Park, Dublin

The Commission is pleased to welcome visitors from other jurisdictions and law reform bodies across the world.

In 2012, for example, the Commission hosted study visits to discuss law reform by a lawyer from Moldova; and a lawyer from the Uganda Law Reform Commission.

In September 2012 Lady Clark and Professor MacQueen met a delegation of judges from the Shanghai No 1 Intermediate People's Court, China on a study visit to Scotland, and addressed them on the work of the Commission.

Dr Steven attended the Australasian Law Reform Agencies Conference in Canberra, Australia in September 2012. The theme of the conference was Conversations about Law Reform: Sharing Knowledge and Experience. Dr Steven undertook a number of valuable meetings in Brisbane and Canberra, Australia and in Auckland and Wellington, New Zealand, to discuss aspects of Personal Property Securities law in these jurisdictions. The reforms in these countries are of significance to the Commission's current project on moveable transactions. Meetings were held with the Australian Law Reform Commission and the New Zealand Law Commission, and with practitioners, judges and Government officials.

The Commission has a link with the Malawi Law Commission as part of the Scottish Government's Programme on Capacity Building for Justice in Malawi. The Commission liaises with Challenges Worldwide, the development agency appointed by Scottish Ministers to prepare and deliver the Programme for the justice sector in Malawi. We have also worked with Challenges Worldwide to facilitate participation in the Programme by other legal bodies in Scotland.

One of the Commission's former legal assistants, Garry MacLean, continues to work in Malawi as the local co-ordinator of the Programme; and he works also on a part-time basis at the Malawi Law Commission, assisting their intellectual property team which is undertaking a review of the law of patents.

The Commission's Chief Executive, Malcolm McMillan was invited by the Africa Research Institute to give a presentation on law reform in London in November 2012 at the launch of their publication on Duty of Care: Constitutional and Law Reform in Malawi by Dr Janet Chikaya-Banda, then the Chief Law Reform Officer of the Malawi Law Commission.

Future law reform publications

The Commission aims to make progress on all of our current law reform projects in the course of 2013, in particular by issuing publications on certain of these projects. The rate of progress we make depends on the priorities accorded to the respective areas of work; on the resources available to us; and on the extent to which the Commission is asked to take on other work.

We expect to publish further discussion papers within the next year or so on breach of contract, as part of our continuing review of contract law; and on compulsory purchase law.

A number of projects will be completed during this period by the submission of a report and draft Bill to Scottish Ministers for consideration. We are aiming to issue reports on judicial factors; execution in counterpart; trust law; the consolidation of bankruptcy legislation; and adults with incapacity.

As regards our joint work with the Law Commission for England and Wales, we expect to complete a number of projects in the course of the next year or so, by submitting joint reports on level crossings and on insurance contract law; and joint advice on unfair terms in consumer contracts.

Commissioners and staff

Commissioners

Lady Clark of Calton, Chairman

Ms Laura Dunlop QC

Patrick Layden QC TD

Professor Hector MacQueen

Dr Andrew Steven

Chief Executive

Malcolm McMillan

Parliamentary Counsel (Consultant)

Gregor Clark CB

Project Managers

(Solicitors)

Heike Gading

Charles Garland

Lesley Mure

Alastair Smith

Susan Sutherland

Gillian Swanson

Solicitor

Susan Robb

Legal Assistants

Joanna Bain

Julie Davidson

Lorna MacFarlane

Scott McGeachy

Librarian

Emma McLarty

Office Manager

Karen Hackland

Personal Secretaries

Jacqueline Berry

Joan Melville

Administrative Staff

Iain Ritchie

Gordon Speirs

The Commission's running costs 2012

The Scottish Law Commission is funded by the Scottish Government. Our running costs for 2012 were offset by payments received from Skills for Justice and the Royal Commission on the Ancient and Historic Monuments of Scotland for use of part of our office accommodation.