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Law Commission and Government should work more closely, chairman urges

23 November 2015

Law reform in Scotland would benefit from closer working between the Scottish Government and the Scottish Law Commission, according to the chairman of the Commission, Lord Pentland.

Speaking at an event held by the Scottish Public Law Group to mark the Commission's 50th anniversary year, Lord Pentland reviewed the Commission's progress to date before offering two suggestions for possible improvements in the way it works.

First, without weakening the Commission's constitutional independence from Government, he said, the aim should be to achieve "a more concrete assurance of government support for our legislative proposals from an earlier stage". This should reduce the need for further consultation and for reworking of the Commission's proposals. 

A "possible outline" for a new scheme, the chairman continued, would be:

  • closer alignment of the Commission's work with Government directorates when projects are being considered for inclusion in its programme, with each taking account of the interests of the other;
  • projects should be selected taking account of the realistic prospects for legislative implementation within a reasonable time, through "real and meaningful engagement between the Government and the Commission";
  • each Government directorate should be required to consider whether to propose law reform projects for the Commission from within their areas of responsibility;
  • the Commission would still decide whether to include any project in its proposed programme of law reform. There would, however, be an understanding that government nominated projects would be treated seriously as candidates for inclusion in the programme;
  • if a project nominated by a minister was accepted by the Commission for inclusion in the programme, the Government directorate would be bound to support the Commission’s work during the course of the project and assist ministers in responding promptly to the final report;
  • the minister would be responsible for preparing an analysis of the report and draft Bill within a period to be agreed, generally six months; this analysis would then recommend whether legislation should be introduced.   
  • if the Government accepted a ministerial recommendation for legislation, it should introduce a bill to the Scottish Parliament as soon as practicable, if appropriate using the new parliamentary process before the Delegated Powers & Law Reform Committee;
  • if a Commission recommendation is rejected, the Government would be bound to submit a report explaining the reasons for its decision to the Scottish Parliament within three months or other period to be agreed. Any MSP would then be able to call for a parliamentary debate on the matter. 

"In my opinion, arrangements along these lines (or something similar) would assist in trying to ensure that the work of the Commission is in tune with the Scottish government's strategic objectives and, therefore, stands an improved prospect of being implemented within a reasonable time", Lord Pentland added.

The chairman's second area of possible development related to the harnessing of legal expertise for our projects. "Greater flexibility may have some attractions. Partnership arrangements between the Commission and the university law schools might be one possible option, thus allowing for academic staff to be seconded to the Commission to work on projects in which they have particular expertise and to which they can bring the benefit of their research. I would have thought that the type of intensive analytical work carried out in the course of a law reform project would be recognised as having scholarly merit and practical impact for the purposes of receiving accreditation as acceptable published academic work."

He concluded: "All public bodies should constantly be looking critically at how they operate to ensure that they deliver value for public money in times of great economic pressure. The Scottish Law Commission is no exception and we need to think creatively about how we utilise our limited budget and small staff for the purpose of ensuring that we fulfil our statutory responsibilities in the most effective manner."

A feature based on presentations at the event will appear in the December Journal.

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