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Law reform: a new era?

19 January 15

In its 50th anniversary year, the Scottish Law Commission can look forward to speedier implementation of its law reform proposals, thanks to a new, specially designed parliamentary process

by Malcolm McMillan

The profile of the Scottish Law Commission and of law reform in Scotland has recently received an exciting boost. This is particularly well timed, given that the Scottish Law Commission celebrates its 50th birthday in 2015.

“Commission bill”: a special status

The most important change is that there is now a committee of the Scottish Parliament specifically focused on law reform – the Delegated Powers & Law Reform Committee. Many Scottish Law Commission bills will now come under the committee’s remit. So it can take the lead in scrutinising such bills.

The background to these important changes is that the Scottish Parliament decided in May 2013 to make changes to its standing orders to provide for this committee and its law reform remit.

Contributions to the debate recognised the high quality of the work of the Scottish Law Commission, and reflected a desire to make more parliamentary time available to address Commission reports.

The changes took effect on 5 June 2013. The Presiding Officer then made a determination on 6 June 2013 setting out the criteria for Commission bills for this process: “As well as implementing all or part of a report of the Scottish Law Commission… The Presiding Officer has determined under Rule 9.17A.1 (b) that a Scottish Law Commission Bill is a Bill within the legislative competence of the Scottish Parliament—

(a) where there is a wide degree of consensus amongst key stakeholders about the need for reform and the approach recommended;

(b) which does not relate directly to criminal law reform;

(c) which does not have significant financial implications;

(d) which does not have significant European Convention on Human Rights (ECHR) implications; and

(e) where the Scottish Government is not planning wider work in that particular subject area.”

This reflected the Parliament’s wish to find a way forward for some Commission bills, namely law reform bills updating the law to keep in step with changes in society or to develop the common law, rather than bills that are contentious or have a political profile.

Many Commission bills, emanating from useful law reform projects designed to address practical difficulties in the law, are likely to qualify for the process. This is subject to the proviso that on consultation, consultees generally agree that reform is needed and on the proposed approach to reform.

First up: Legal Writings (Counterparts and Delivery)

A Scottish Government bill, the Legal Writings (Counterparts and Delivery) (Scotland) Bill, was introduced in the Parliament on 14 May 2014 and was chosen by the Parliament as the first Commission bill to go through the new parliamentary process. The bill was referred to the Delegated Powers & Law Reform Committee, as the lead committee in considering its provisions. The committee approved the principles of the bill in its stage 1 report published on 14 November 2014.

The bill, if enacted, will make two significant improvements to Scots law and practice when executing documents.

It provides that a document which is to be signed by two or more parties can be “executed in counterpart”, i.e. that each party can sign its own copy of the document, which will then be delivered to the other party or parties (or their nominee where there are several of them). The bill also permits delivery of legal documents by electronic means, meaning that the document will take legal effect upon such delivery, thus resolving a current doubt as to whether faxing or emailing a copy of a signed paper document can make it legally effective.

The bill qualified for the process in 2013 on the basis that it implements recommendations 1 to 20 of the Commission’s Report on Execution in Counterpart, and it meets the criteria set by the Presiding Officer. The Minister for Energy, Enterprise & Tourism, Fergus Ewing MSP, wrote to the chairman of the Commission on 28 February 2014, noting that officials and the Commission team responsible for the bill gave joint consideration to the matter and came to the shared conclusion that the bill meets the criteria. The minister arranged for the letter to be laid formally in the Parliament.

In preparing the bill, the Commission carried out extensive consultation, as is its usual practice. This established that there was widespread support for the bill, particularly amongst solicitors. So the first criterion was met. The Commission published a discussion paper, part 3 of which was devoted to the topic of execution in counterpart. The Commission, jointly with the University of Edinburgh’s Centre for Private & Commercial Law, hosted a seminar on execution in counterpart on 29 November 2012, and the Commission published a draft bill for discussion on its website. Following the seminar, the Commission released a revised draft of the bill for further comment in January 2013, coinciding with publication of an article on the topic written by a leading practitioner: Paul Hally, “Separate but legal”, Journal, January 2013, 22. All responses expressed support for the bill.

As regards the other specific criteria for such a bill to qualify for the process, it was agreed that the bill relates to civil law reform and not to criminal law reform; that no significant cost implications arise, only relatively minor costs in making lawyers aware of the changes; that the bill does not have implications under the European Convention on Human Rights; and the Government confirmed that it is not planning wider work in the area.

Going forward in partnership

The Scottish Government’s Programme for Government 2014-15 was announced by the First Minister on 26 November 2014. The programme states that the Government will continue to identify opportunities to make use of the new legislative procedure established to improve the rate of implementation of Commission reports. The Government proposes to put forward a second bill as a candidate for this procedure, on aspects of succession law, which would implement a number of recommendations contained in the Commission’s Report on Succession, published in 2009.

The introduction of a new parliamentary process, involving the Delegated Powers & Law Reform Committee, recognises the important role of the Scottish Law Commission in recommending reforms to improve, simplify and update the law of Scotland.

Establishing a new process dedicated to some Commission bills opened a new door in the Scottish Parliament for law reform. The first bill for the process has been given stage 1 approval. A second bill has been identified as a candidate. It is hoped that this will herald a new era for implementation of law reform in Scotland, as the Commission celebrates its golden anniversary. It reflects also the growing relationship of mutual trust and confidence between the Commission, the Scottish Government and the Scottish Parliament.

Malcolm McMillan is chief executive of the Scottish Law Commission, a solicitor and a member of the Government Legal Service for Scotland 

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