Scottish Law Commission (Reports)

Chairman's foreword

I am honoured to have been appointed Chairman of the Scottish Law Commission in succession to Lord Eassie on his elevation to the Inner House of the Court of Session. My term of office runs from the beginning of 2007; consequently this Annual Report covers the last year of Lord Eassie's leadership.

It is clear to me that the Commission is in very good heart, and that over the past year it has made substantial progress on the Seventh Programme and on the several Ministerial references that it has received.

During the year our Reports on Interest on Debt and Damages and Conversion of Long Leases were submitted to Scottish Ministers and substantial discussion papers were published on Limitation in Personal Injury Actions, Rape and Other Sexual Offences and the Nature and Constitution of Trusts. Work is also under way on a new project on Damages for Wrongful Death; this results from a reference from the Scottish Ministers in September.

An important development in the structure of the Commission is the recent appointment of Gregor Clark CB as Parliamentary Counsel. Mr Clark was previously a senior member of the Office of Scottish Parliamentary Counsel in the Scottish Executive, on which we continue to rely for some of our legislative drafting requirements. The greater drafting resources that are now available to the Commission will assist in our work generally, and facilitate consolidation and statute law revision. I hope that, with the support of the Scottish Executive, progress may be made in preparing a programme of consolidation of legislation in the Scottish Parliament.

Under my predecessor's distinguished chairmanship, Commissioners continued in 2006 to advance the cause of law reform in Scotland. Since my appointment as Chairman I have quickly come to appreciate the dedication, ability and enthusiasm of my fellow Commissioners and of all the staff at the Commission. I look forward to working with them over the coming years.

THE HON LORD DRUMMOND YOUNG

Chairman
 

Publications 2006

During 2006 we published the following reports and discussion papers.

Seventh Programme of Law Reform

The topics which form the main part of our law reform work are outlined in our Seventh Programme of Law Reform, published in February 2005.

The programme, which covers the period up to the end of 2009, lists the projects on which we are currently working including those on property law, succession, trusts and judicial factors. It refers also to projects on which work has yet to begin: unincorporated associations; provocation, self-defence, coercion, and necessity; and assignation of, and security over, incorporeal moveable property.

References from Ministers

In addition to projects under our Seventh Programme, we undertake work in response to references from Ministers in areas of law where there may be specific problems.

References have always formed a key part of our work, but since devolution they have taken on greater significance and occupied more of our resources. These projects tend to focus on fairly narrow legal issues which in Ministers' view need urgent examination, often in response to concern from the public or the Scottish Parliament. For this reason, work on references generally has to be completed within a shorter timescale and may involve some adjustment to the timetable for our programme work.

Projects under our Seventh Programme

Land registration

Project Team

Professor George Gretton, Commissioner

John Dods, Project Manager

John MacLeod, Legal Assistant

John Glover, Registers of Scotland

In view of the complexity of the topic, we decided to publish three separate discussion papers on different aspects of reform.

The first paper – on Void and Voidable Titles (published in February 2004) - examined the legal policy issues underlying land registration. The second - on Registration, Rectification and Indemnity (published in August 2005) - considered the provisions of the Land Registration (Scotland) Act 1979.

The third discussion paper - on Miscellaneous Issues (published in December 2005) - dealt with topics such as descriptions and boundaries, servitudes, overriding interests, and decision-making by the Keeper of the Registers of Scotland.

We have been considering the proposals in view of the comments received from consultees. There are some issues where further consideration is required. Some new issues have also emerged.

Work is now progressing on preparation of our report and draft Bill which we aim to publish during 2008.

We are grateful to the Registers of Scotland for their continued assistance with the project.

Leasehold tenure

Project Team

Professor George Gretton, Commissioner

John Dods, Project Manager

John MacLeod, Legal Assistant

Leasehold tenure is another topic included in our Seventh Programme. The project was to examine whether some categories of long lease should be converted into ownership.

Work on the project was completed in December 2006 with the publication of our Report.  If enacted, our recommendations for reform would be an appropriate follow-up to the Abolition of Feudal Tenure etc. (Scotland) Act 2000. That Act removed most of the hierarchical nature of land tenure in Scotland. The present recommendations would complete that process while allowing the continued use of leases of reasonable duration.

A significant number of ultra-long leases exist in Scotland, with terms such as 999 years.  Although in many respects a tenant resembles an owner, the law does not recognise that.  There are a number of problems with these types of leases, not least the fact that in some cases there is a risk of unilateral termination by the landlord without compensation, for breaches of the terms of the lease, such as non-payment of rent.

The main recommendation of the report is that tenants of ultra-long leases should be entitled to have their rights converted into ownership.  An ultra long lease in this context is a lease which is granted for more than 175 years and which still has more than 100 years to run. The draft Bill included in our report contains a scheme for the automatic conversion of leases into ownership, modelled on the scheme which was contained in the 2000 Act for the conversion of feus into outright ownership.

Succession

Project Team

Professor Joe Thomson, Commissioner

David Nichols, Project Manager

Maria Theodossiou, Legal Assistant

We have examined aspects of succession law before. Our wide-ranging report, published in 1990, dealt with intestacy, legal rights and protection from disinheritance, making and revocation of wills, survivance and many other topics. The report has not been implemented.

Following suggestions made to us during consultation on a draft of our Seventh Programme, it was decided to include a limited re-examination of succession law to ensure that it reflects current social attitudes and deals with the types of relationship which have become fairly common in Scotland over the last few years.

One part of the project is focusing on the rights of surviving spouses, civil partners, cohabitants, children and stepchildren on intestacy. The other part is considering whether these relatives should be protected against disinheritance and how such protection is best achieved. Following concerns expressed by members of our advisory group, we are also considering whether executors-dative appointed by the court in intestate estates should continue to be required to find caution.

During the year the team had a number of useful meetings with interested parties in connection with preparation of our discussion paper, which we are aiming to publish in the summer of 2007.

Trusts

Project Team

Professor Joe Thomson, Commissioner

Colin Tyre QC, Commissioner

David Nichols, Project Manager

Diana Tansley, Legal Assistant

This is a long-term project, which may need to be carried forward into our next programme of law reform.

At the beginning of the project we decided to approach our work in two main stages: the first dealing with trustees and the second with trusts. To date we have published five discussion papers. Two were published in September 2003 - on breach of trust, and on apportionment of trust receipts and outgoings. The third paper – dealing with trustees and trust administration - was published at the end of 2004 and the fourth – on variation and termination of trusts was published in December 2005.

We published our fifth discussion paper in the series - on the Nature and the Constitution of Trusts - in October 2006. It considered the dual patrimony theory, the possibility of conferring legal personality on trusts and what juridical acts were required to constitute a trust between the truster and the trustee/beneficiary, and as between the truster and third parties. It also dealt with latent trusts of heritable property.

We are aiming to publish our report on variation and termination of trusts in the spring of 2007 and reports covering the matters in the other discussion papers in the trust law series in 2008.

Judicial factors

Project Team

Professor Gerry Maher QC, Commissioner

Gillian Swanson, Project Manager

Diana Tansley, Legal Assistant

Judicial factors are officers appointed by the court to collect, hold and administer property in difficult circumstances, for example, where there is a dispute about property or nobody else to administer it.

The law in this area is in need of radical overhaul to make it fit for the 21^st century. There has been no primary legislation dealing with judicial factors since the Judicial Factors Acts came into force over a hundred years ago. The legislation is now in need of modernisation and simplification. Our preliminary research has shown that the legislation does not reflect current practice and the procedures involved in setting up a judicial factory are cumbersome. Similarly, the procedure for formal discharge is time-consuming and expensive. The functions, powers and duties of a judicial factor need to be clarified and modernised.

Last year we reported that we were aiming to publish a discussion paper in 2006. Work has been done on preparation of a discussion paper, but it has not been possible to complete it due to the need for us to give priority to other projects, in particular the major criminal law project, which Professor Maher is leading. Our aim is to publish the discussion paper in 2007.

Unincorporated associations

This topic was suggested to us by the WS Society in response to consultation on the possible content of our programme. Some initial research has been done, but we intend to undertake further research in the early part of 2007, with a view to preparing a discussion paper.

Provocation, self-defence, coercion, and necessity

Consolidation and statute law revision

Consolidation

Team members

The Hon Lord Drummond Young, Commissioner

Susan Sutherland, Project Manager

David Massaro, Legal Assistant

In addition to our law reform work we also undertake work on consolidation of legislation. Consolidation involves bringing together a number of statutes on a particular area of law into a single Act, with the aim of modernising the language and simplifying the provisions.

Most of our current work on consolidation is on joint projects with the Law Commission in London who take the lead in preparing the draft Bill. Our role is to assist the Law Commission team and to consult with interested parties in relation to Scottish provisions.

Parliamentary Costs

During 2006 we assisted the Law Commission in completing our joint Report and Bill on the consolidation of the legislation relating to parliamentary costs. The Report, which included the draft Bill, was published in June.

Wireless Telegraphy

We also assisted the Law Commission with finalising the Bill to consolidate the legislation relating to wireless telegraphy. This project did not involve the publication of a report by the Commissions as no recommendations were required for amendments to the legislation.

Representation of the people

We are currently assisting the Law Commission in London with work on a Bill to consolidate the legislation relating to representation of the people. Some work was done a few years ago, but the project was suspended in December 2003 to enable UK Ministers to consider fully the Electoral Reform Commission's Report on Voting for Change.

The Bill is being amended to take account of changes to electoral law since 2003. A number of issues have emerged and as a consequence no final decision has been made on the timetable for the project.

Consolidation of primary legislation

We have not as yet prepared a programme setting out proposals for consolidation of primary legislation for implementation by the Scottish Parliament. The absence of a programme is due in part to the need for us to give priority to other law reform projects, particularly references from Scottish Ministers, and also to the fact that the Scottish Executive has been unable to allocate resources to assisting with the policy aspects involved in consolidation.

Consolidation of regulations

We have continued to assist the Executive with preparation of draft statutory instruments to consolidate a number of Regulations relating to the National Health Service in Scotland.

Statute law revision

Team members

The Hon Lord Drummond Young, Commissioner

Susan Sutherland, Project Manager

David Massaro, Legal Assistant

In addition to consolidation of legislation, our functions include undertaking work on statute law revision. This work involves making recommendations for the repeal of legislation which has become obsolete or otherwise unnecessary, with a view to making the statute book easier for those using it.

Most of our work on statute law revision is undertaken jointly with the Law Commission in London, who are responsible for drafting a repeals Bill. Seventeen such Bills have been prepared by the Commissions, all of which have been implemented.

Eighteenth statute law (repeals) Bill

Work is progressing on preparation of an eighteenth statute law repeals Bill. During 2006 we consulted with interested bodies in Scotland on a number of repeal proposals identified by the Law Commission team, including those relating to the armed forces and taxes and duties.

The aim is to complete a joint report and Bill around the end of 2007 with a view to introduction of the Bill in the UK Parliament in 2008.

David Massaro and Diana Tansley

Implementation of our reports

During 2006, our project teams provided assistance to the Scottish Executive and to Whitehall Departments during the Parliamentary stages of a number of Bills.

We regard our assistance to Departments with implementation of our recommendations as an important part of our overall function, although on occasions it requires us to re-schedule work on our current law reform projects to allow time to advise officials and comment on draft provisions. We hope to continue our close relationship with the Executive and Whitehall Bill teams in the future.

Bankruptcy and Diligence etc, (Scotland) Act 2007

The Bankruptcy and Diligence etc, (Scotland) Act 2007 implemented recommendations in our Report on Diligence on the Dependence and Admiralty Arrestments, published in 1998 and our Report on Diligence, published in 2001.

The Act also implemented provisions relating to the law of floating charges as recommended in our Report on Registration of Rights in Security by Companies, published in 2004. Further provisions relating to the recommended Register of Floating Charges were included in the Companies Act 2006.

As a result of amendments made towards the end of November 2006, provisions were also included to give effect to proposal 4 in our Discussion Paper on Sharp v Thomson. Our property law team provided detailed advice to the Scottish Executive on a number of aspects of the Bill including land attachments.

Parliamentary Costs Act 2006

The consolidation Bill annexed to our joint Report with the Law Commission on Parliamentary Costs was introduced in the UK Parliament to coincide with publication of the Report in June 2006. The Act, which received Royal Assent on 8 November 2006, consolidates the legislation, dating back to Victorian times, relating to charges for Parliamentary agents and solicitors in bringing forward or opposing private Bills in the UK Parliament.

Wireless Telegraphy Act 2006

The Wireless Telegraphy Act 2006 consolidates a number of Acts dealing with the radio spectrum, dating back to 1949. The Act was the result of joint work with the Law Commission team in London who took the lead in preparing the draft Bill, which was introduced in the UK Parliament and received Royal Assent on 8 November 2006.

Promoting law reform

Throughout 2006 we continued our links with the Scottish Executive, the Law Society of Scotland, the Faculty of Advocates, other professional bodies and the university law schools. In addition to working with the Law Commission on our joint projects, we maintained close contact on general matters relating to our law reform work.

International links, conferences and other events in 2006

Our former Chairman, Lord Eassie, and Michael Lugton, our Chief Executive, attended a meeting of Chairmen and Chief Executives of all Law Reform Bodies of the British Isles in London in February, to discuss a number of challenges common to all law reform bodies.

In March, Professor Maher and one of our former legal assistants travelled to the National University of Ireland in Galway to talk to post-graduate students about the process of law reform.

The Chief Executive represented the Commission at the Australasian Law Reform Agencies Conference held in Sydney from 10–12 April.

During the year we were pleased to welcome a number of visitors to the Commission.

Catherine Munyao of the Kenya Law Reform Commission came to the Commission in March during her visit to Scotland. She met the project teams and the Chief Executive to discuss current law reform work and the management of projects.

Fiona Kalemba of the Ministry of Justice in Malawi visited us as part of her placement with the Office of the Scottish Parliamentary Counsel.

Prue Vines of the University of New South Wales visited the Commission as part of her official visit to Strathclyde University Law School. She met Professor Thomson to discuss our current projects on succession and damages.

Commissioners, management and staff

Commissioners

At the end of December 2006 the Hon Lord Drummond Young was appointed as Chairman of the Commission, succeeding the Rt Hon Lord Eassie, who took up appointment to the Inner House of the Court of Session. Lord Drummond Young has been appointed on a part-time basis for five years until the end of 2011. He will combine his role as Chairman with his judicial duties.

Professor George Gretton joined the Commission in May 2006 for a five year period from the University of Edinburgh. He succeeded Professor Kenneth Reid whose term of appointment ended in December 2005.

Colin Tyre QC was reappointed as a Commissioner for a further three years until 30 September 2009.

Commission management and staff

Commissioners are assisted by the Chief Executive and by legal and non-legal staff.

Parliamentary Counsel

In November, Gregor Clark joined the Commission on a part-time basis as Parliamentary Counsel. He was previously a senior member of the Office of the Scottish Parliamentary Counsel. He is responsible for drafting the Commission's Bills which are intended to implement the recommendations in our reports.

Project managers

The project managers are qualified lawyers and are members of the Government Legal Service for Scotland (GLSS). They are responsible for managing the projects and allocating work to the legal assistants as well as for contributing to the substantive law reform work. We currently have four project managers:

John Dods

David Nichols

Susan Sutherland

Gillian Swanson

Legal assistants

The legal assistants are graduates in law who are employed on fixed-term contracts, usually for one year. Some of them come to us from University while others join the Commission after qualifying as solicitors and gaining experience in private practice with firms of solicitors. Their main responsibilities are to carry out research in connection with preparation of our discussion papers, to assist with analysing responses to our consultation exercises and to provide support to the teams in connection with our reports and draft Bills.

At present we have four legal assistants:

John MacLeod

David Massaro

Diana Tansley

Maria Theodossiou

Trainee solicitor

We have continued our practice of taking on trainee solicitors for six month periods as part of their training with the GLSS. Our current trainee is Fraser Gough.

John MacLeod, Maria Theodossiou and Fraser Gough

Administrative and typing services staff

In addition to the legal staff we currently have a qualified librarian and six members of staff who provide administrative, IT, secretarial and typing services.

Nick Brotchie, Librarian

Joan Melville

Jackie Palkowski

Iain Ritchie

Heather Ryan

Gordon Speirs

Lesley Young, Office Manager

Website

During the year we added a further 37 older Commission publications comprising joint reports from the period 1969-1995 to our website.

Environmental strategy

We have published a revised environmental strategy document on our website, in line with our obligations under the Nature Conservation (Scotland) Act 2004. In the first phase of the new strategy we have been gathering data in the areas of our office operations where we have set targets – consumption of paper, water and energy and waste disposal/recycling. The aim is to reduce our consumption of resources where possible, and we will be using the data collected to set further specific targets for 2007/2008.

Recruitment

As part of our recruitment process for legal assistants, we took part in the law fairs at Aberdeen, Dundee and Glasgow Universities in October and more recently at Edinburgh and Strathclyde Universities.

Equality and diversity

We aim to ensure that principles of equality and diversity are integrated into everything we do, both in our law reform work and in relation to our personnel policy and practices.

Law reform publications planned for 2007

We plan to publish discussion papers for consultation on-

•    Damages for Wrongful Death

•    Succession

•    Judicial Factors

We also plan to publish a Joint Consultation Paper with the Law Commission on-

•    Insurance Contract law: Non-disclosure, misrepresentation and breach of warranty

We plan to publish Reports containing our recommendations for reform on-

•    Rape and Sexual Offences

•    Personal Injury Actions: Limitation and Prescribed Claims

•    Variation and Termination of Trusts

•    Sharp v Thomson

Project advisory groups

We are grateful to the members of our advisory groups for the assistance they have given us with our law reform projects during 2006

Rape and other sexual offences

Sandy Brindley, Rape Crisis Scotland

James Chalmers, University of Aberdeen

Brian Dempsey, Outright Scotland and SCOLAG

Iain Fleming, Solicitor

Janette de Haan, Glasgow Women's Support Project

Tim Hopkins, Equality Network

Louise Johnson, Scottish Women's Aid

Frances McMenamin QC

Stephanie Whitehead, Brook

Personal injury actions

Robert Carr, Solicitor

David Johnston QC

Ranald Macdonald, Scottish Health Service Central Legal Office

Robert Milligan, Advocate

Fiona Moore, Solicitor

Land registration

Professor Stewart Brymer, Solicitor

Professor Roderick Paisley, University of Aberdeen

Professor Kenneth Reid, University of Edinburgh

Professor Robert Rennie, University of Glasgow

Leasehold tenure

Professor Stewart Brymer, Solicitor

Dr Angus McAllister, University of Paisley

Somerled Notley, Solicitor

Professor Robert Rennie, University of Glasgow

Trusts

Alan Barr, Solicitor, University of Edinburgh

Robert Chill, Solicitor

Andrew Dalgleish, Solicitor

Frank Fletcher, Solicitor

Alexander McDonald, Solicitor

Simon A Mackintosh, Solicitor

James McNeill QC

Allan Nicolson, Solicitor

Professor Kenneth Norrie, University of Strathclyde

Scott Rae, Solicitor

Mark Stewart, Solicitor

Alister Sutherland, Consultant Solicitor

Succession

Alan Barr, Solicitor, University of Edinburgh

John Kerrigan, Solicitor

Ross Macdonald, University of Dundee

Iain Maclean, Advocate

Christopher McGill, Secretary, Society of Trust and Estate Practitioners (Scotland)

Professor Michael Meston, University of Aberdeen

Malcolm Strang Steel, Solicitor

Eilidh Scobbie, Solicitor

Scott Rae, Solicitor

Gordon Wyllie, Solicitor

Running costs

The Commission is funded by the Scottish Executive Justice Department. Our running costs for 2006 were offset by payment 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.