Delegated Powers and Law Reform Committee
Letter from Charles Garland Interim Chief Executive of the Scottish Law Commission
Letter from Charles Garland Interim Chief Executive of the Scottish Law Commission, 7 September 2021
Dear Andy
I am writing to respond to a question raised when I attended a session of the Delegated Powers and Law Reform Committee’s business planning day on 24 August. Before doing so, may I thank you again for the chance to meet the members of the Committee and to have a discussion about the role of the Scottish Law Commission and SLC Bills. I found it a very encouraging session and the questioning revealed some interesting lines of enquiry.
The particular matter on which I agreed to write concerns the number and importance of unimplemented SLC Reports. The annexed table provides a list of such Reports going back to 2006, with some brief comments against each.
Before highlighting those Reports whose implementation we see as being most urgent, may I make three background points?
First, although implementation of our Reports and their accompanying Bills is for the Scottish Government and the Scottish Parliament (or, where the subject matter is reserved, for the UK Government and UK Parliament), we will continue to offer such ongoing support as may be needed, within the limits of our resources. Clearly, the shorter the period between publication of a Report and introduction of a Bill, the greater the chance, at a practical level, that the relevant SLC personnel will still be available. Also, the greater the likelihood that consultations responses remain reliable and our recommendations and draft Bills are unaffected by (say) subsequent changes in the law.
Secondly, our 2020 Annual Report records that the overall position on implementation of SLC Reports from 1965 to December 2020 is that, of 190 Reports published in that period, 158 (ie 83%) have been implemented in whole or in part, and 5 (3%) have been superseded. 27 (14%) have not been implemented at all.
Thirdly, the statistics can only tell some of the story. There is a considerable range of subject matter covered by our Reports: some have a relatively narrow focus – the 2019 Report on Section 53 of the Title Conditions (Scotland) Act 2003 is an example – whereas others are very broad, such as the compendious 2014 Report on Trust Law or 2010 Report on Land Registration. Equally, different reports may have different value for society as a whole. As an example, we periodically produce Statute Law Reform Bills whose aim is to repeal obsolete and often very ancient and obscure legislation and their value is largely technical. This may be contrasted with, say, the subject matter of some of our current projects on homicide, cohabitants’ rights, surrogacy, and automated vehicles, to name just four of them.
This leads to an aspect of the question I was asked to address, which is to identify those Reports whose implementation we see as most pressing. These would certainly include the two which I highlighted at the business planning day:
- Moveable Transactions (No 249; 2017) and
- Trust Law (No 239; 2014).
Both continue to attract widespread support and are broad in their coverage. They would each bring welcome benefits to the Scottish economy.
Others whose prompt implementation we consider would be highly desirable are, in descending order of recency, those on the following topics:
- Section 53 of the Title Conditions (Scotland) Act 2003 (No 254; 2019)
- Review of Contract Law: Formation, Interpretation, Remedies for Breach, and Penalty Clauses (No 252; 2018)
- Judicial Factors (No 233; 2013)
- Unincorporated Associations (No 217; 2009)
- Also, to keep the statute book in good order, we would add the overdue implementation of Statute Law Repeals (No 243; 2015)
In the main, the bills which correspond to these Reports would be expected to be introduced into the Scottish Parliament. However, the one on Unincorporated Associations deals with a reserved matter and so would be for the UK Parliament, which is also where the Statute Law Repeals bills are taken. For reasons of space I have not gone into any detail on this, or on the benefits which each of the law reform measures might bring. I would be happy to do so at a convenient point if that would be helpful.
Finally, the subject of commencement orders for Acts of the Scottish Parliament came up in the business planning session. This is primarily a matter for the Scottish Government but it has arisen in acute form in respect of a recent SLC Bill, the Prescription (Scotland) Act 2018. This was enacted not long after the publication of our Report on Prescription in 2017 but there has since been a considerable delay in bringing it into effect. Of course we support a careful and considered approach to commencement, such as is evidenced by the Scottish Government’s consultation in respect of this particular Act. As a general point, however, we would encourage commencement issues to be considered as part of the bill process, together with matters such as savings and transitional provisions. As illustrated by the Prescription legislation, they can often be an important and integral part of the law reform package.
I trust that this information is useful to your Committee and I would be happy to provide anything further which might be of value. In any event Lady Paton and I look forward to giving evidence to the Committee on 28 September.
Yours sincerely,
Charles Garland