Scottish Law Commission Annual Report 2018 (Report 253)
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promoting law reform (SCOT LAW COM No 253) annual report 2018 1 2 promoting law reform The Commission was established under the Law Commissions Act 1965 Our function To recommend reforms to improve, simplify and update the law of Scotland Our role To play a leading role in developing the law for the people of Scotland so that it is just, principled, responsive and easy to understand annual report 2018 1 Commissioners and Chief Executive (back row) Dr Andrew Steven, The Hon Lord Pentland (Chairman), Kate Dowdalls QC (front row) David Johnston QC, Malcolm McMillan (Chief Executive), Caroline Drummond 2 promoting law reform Annual Report 2018 To: Humza Yousaf MSP, Cabinet Secretary for Justice We are pleased to submit to the Scottish Ministers our Annual Report for the year to 31 December 2018. PAUL B CULLEN, Chairman KATE DOWDALLS CAROLINE S DRUMMOND DAVID E L JOHNSTON ANDREW J M STEVEN Malcolm McMillan, Chief Executive 12 February 2019 Laid before the Scottish Parliament by the Scottish Ministers under section 3(3) of the Law Commissions Act 1965. February 2019 SCOT LAW COM No 253 SG/2019/14 3 © Crown copyright 2019 You may re-use this publication (excluding logos and any photographs) free of charge in any format or medium, under the terms of the Open Government Licence v3.0. To view this licence visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3 ; or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU; or email: [email protected] Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available on our website at: www.scotlawcom.gov.uk Any enquiries regarding this publication should be sent to us at: [email protected] ISBN: 978-0-9500276-4-7 Produced for the Scottish Law Commission by APS Group Scotland, 21 Tennant Street, Edinburgh EH6 5NA 4 SCOTTISH LAW COMMISSION ANNUAL REPORT 2018 Contents Chairman’s foreword 7 Publications 2018 9 Implementation of our reports 2018 10 Law reform projects 12 Consolidation and statute law repeals 21 Promoting law reform 22 Publications planned for 2019 25 Commissioners and staff 26 The Commission’s running costs 2018 27 5 6 SCOTTISH LAW COMMISSION ANNUAL REPORT 2018 Chairman’s foreword I have previously highlighted that systematic law reform is of vital importance for the success and prosperity of the people of Scotland. The pressures on government mean that it cannot be expected to keep the whole legal system under constant review. Development of the law by the courts is subject to suitable cases coming forward. These realities mean that the work of the Commission is key in ensuring that the law is kept up to date, that it develops in harmony with the values and thinking of modern society, and that it supports the needs of the economy. In 2018 we published a report, two discussion papers and a joint consultation paper. We also embarked on our Tenth Programme of law reform. The new Programme includes a wide range of work: on family law; on the law of homicide; on surrogacy; on self-driving vehicles; on securities over land; on the law of leases; and on damages for personal injury. Further details can be found in this report. As I leave the Commission, I would offer the following thoughts for the future. Successful law reform depends on prompt I am pleased to introduce the Annual Report implementation of our recommendations; otherwise of the Scottish Law Commission for 2018. The these are liable to become outdated. report explains our work over the past year. It also brings to a close my five-year term as I would like to commend here the work of the Delegated Chairman of the Commission. Powers and Law Reform Committee of the Scottish Parliament. The Committee has considered a number of The Scottish Law Commission has statutory our Bills since its remit was widened in 2013 to include responsibility for promoting reform of the law some law reform work. I was delighted to see the of Scotland. We are non-political and Committee scrutinise the Bill based on our 2017 Report independent of government. Our remit on Prescription, which as passed by the Parliament is now extends to the whole of Scots law: in both the Prescription (Scotland) Act 2018. The criteria for devolved and reserved areas. We develop our referral of our Bills to the Committee are, however, in my proposals for reform on the basis of extensive view unduly narrow; for instance, they exclude all criminal public consultation. We work closely with law reform. It would be appropriate to consider whether stakeholders throughout our law reform the criteria should now be expanded. projects. We produce detailed proposals for improving the law. 7 Other committees in the Scottish Parliament have been During the year Professor Hector MacQueen less active in dealing with Commission measures in recent completed his service as a Commissioner years. I hope that this will change in the near future. with publication of our report reviewing contract law. I am grateful to him for his Whilst it is encouraging to note that the Scottish substantial contribution to law reform. His Government intends to move ahead with our successor is Kate Dowdalls QC, who will lead recommendations on defamation law, on judicial factors, our project reviewing family law. I wish her and on succession, important proposals for reform in other every success in her new role. key areas are yet to be taken forward. I mention three. My successor is Lady Paton. She brings First, the position in respect of trust law is concerning. extensive experience as an advocate and Modernisation is strongly supported by key stakeholders; judge. I wish her well. they have emphasised the need for reform in an area that is of considerable importance to society and the economy, I conclude by expressing my sincere where the main current legislation is nearly a century old. appreciation to all my colleagues at the The Scottish Government has not yet provided a Commission for their invaluable work on law substantive response to our report published in 2014. I reform, and for the unstinting support they would urge them to do so without further delay. have given me in the last five years. Second, I would draw attention to our unimplemented 2012 report on similar fact evidence and the Moorov doctrine. Here too reform is urgently needed because the law is unclear and gives rise to real difficulties in practice. The Hon Lord Pentland Third, I would mention our 2017 report on moveable Chairman transactions. Reform is essential to enable Scottish businesses to gain access to finance and to reduce the advantage held by businesses regulated by English law. I encourage the Scottish Government to move forward rapidly with its consideration of our recommendations. 8 SCOTTISH LAW COMMISSION ANNUAL REPORT 2018 Publications 2018 PUBLICATION DATE OF PUBLICATION Tenth Programme of Law Reform 22 February 2018 (Scot Law Com No 250) Annual Report 2017 28 February 2018 (Scot Law Com No 251) Report on Review of Contract Law: Formation, 29 March 2018 Interpretation, Remedies for Breach, and Penalty Clauses (Scot Law Com No 252) Discussion Paper on Section 53 of the Title Conditions 11 May 2018 (Scotland) Act 2003 (DP No 164) Discussion Paper on Aspects of Leases: Termination 23 May 2018 (DP No 165) Joint Consultation Paper on Automated Vehicles 8 November 2018 (DP No 166) On 11 December 2018 we published a revised and updated version of the Trusts (Scotland) Bill annexed to our Report on Trust Law (Scot Law Com No 239). This fulfils an indication we had given at the time of publication in 2014 that we would continue to work on a suite of consequential amendments which would be required if our law reform recommendations were implemented. 9 Implementation of our reports 2018 The Commission’s statutory function is to Act passed by the Scottish provide independent advice to government on Parliament in 2018 the reform of Scots law. Our recommendations for reform are contained in reports, which Prescription usually include a draft Bill which would give The Prescription (Scotland) Bill was introduced in effect to our recommendations. Most of our Parliament on 8 February 2018 and received Royal reports are submitted to the Scottish Ministers, Assent on 18 December 2018. The Act is not yet fully and reports are submitted to UK Ministers in force. where the subject matter involves areas of law reserved to the UK Parliament. The Act implements the recommendations contained in our Report on Prescription which was published in Implementation of our recommendations is a July 2017. The amendments to the law are designed to matter for the Scottish Government and increase clarity, certainty and fairness. Scottish Parliament or, where appropriate, the UK Government and UK Parliament. In both The main policy aim of the Act is to address issues cases the Commission usually provides within the law of negative prescription which can assistance to government officials during the cause difficulty in practice. One such difficulty relates Parliamentary stages of the Bill, and provides to the so-called discoverability test, that is to say the evidence to the Parliamentary Committee knowledge which a pursuer must have before the scrutinising the Bill. prescriptive period begins to run where damages are sought for loss or damage which was initially latent. Defamation The Act introduces a new test to deal with concerns The Commission published our Report on about the limitations of the existing test, which has Defamation on 14 December 2017.