The Scottish Law Commission was established almost 40 years ago with the objective
of recommending reforms to improve, simplify and update the law of Scotland.
It has now published its Seventh Programme of Law Reform, outlining the work
it proposes to undertake over the next five years, prepared following wide
consultation with the legal profession and other interested parties, including
the general public.
Several projects are carried over from the previous programme of work, and
the new programme includes short, medium and long-term projects.
The criteria which the Commission adopts when selecting subjects to be
included in the programme include looking at the extent to which the law is
currently
unsatisfactory, where for example, it is unjust or ambiguous, or where
it has become out-of-date or is overly complex, as well as the extent of
the
difficulties
encountered in practice with the existing law and whether these difficulties
can be overcome in other ways.
There are four projects being carried forward
from the Sixth Programme:
Conversion of long leases
The Commission has already carried out a significant amount of work on this
project. In April 2001, a Discussion Paper on Conversion of Long
Leases was published which proposed that long leases for more than 175 years should
be converted into ownership, in a scheme similar to the conversion of
feus into
ownership introduced by the Abolition of Feudal Tenure etc. (Scotland)
Act
2000, recognising that long leasehold tenure has many of the characteristics
of ownership, with leases having durations such as 999 years often regarded
for practical purposes as comparable with feued property, but without
the benefits of ownership at the end of the lease term.
Work on the Commission's Report and a draft Bill on this topic are well
underway, making completion of this work a short-term project.
Land registration
There are a number of complex legal issues involved in a review of the
system of registration of title to land set up by the Land Registration
(Scotland)
Act 1979. The Land Register is a register of interests in land whereas
the Register of Sasines is a register of deeds. The Commission published
a Discussion
Paper on Land Registration: Void and Voidable Titles in February
2004 which considered the essential elements of, and procedures involved
in the land
registration system and some of the difficulties that have arisen
in
practice, including
issues concerning rectification of the Register, payment under the
Keeper's indemnity and the meaning of some of the terms used in the Act.
More detailed issues are to be considered in a second discussion paper
due for publication this year.
Trusts
There is a significant body of law involved in this topic and the
Commission has already produced Discussion Papers dealing with
the powers and
duties of trustees, considering Breach of Trust, Apportionment
of Trust Receipts
and
Outgoings, and Trustees and Trust Administration, which
look at issues such as trustees' failure to meet the necessary
standard
of care when
administering the trust or breaches of their fiduciary duty,
decision making by trustees,
trustee immunity and exemption, delegation of functions to agents,
appointment and removal and the involvement of the courts in
trust proceedings.
The second phase of this project will look at trusts themselves,
including their constitution and variation, the re-organisation
of non-charitable
public trusts, restrictions on accumulation of income, enforcement
of the rights
of beneficiaries and long-term private trusts. Preparatory
to this is an
intended consultation on whether trusts should have legal personality,
the outcome of which will influence the approach taken with
the remainder of
this project.
Judicial factors
Judicial factors are appointed by the courts. They are responsible
for holding and overseeing property according to the terms
of their appointment.
Given
the absence of any review of this area of law and no legislation
on this area for over a hundred years, many aspects of
the role of judicial
factors are
unclear, and current practice has moved on from the existing
legislation. The review and modernisation of the legislation
relating to judicial
factors will
be undertaken by the Commission as a medium term project.
Four new
projects are identified in the Seventh Programme
Law of succession
There are a number of perceived defects in the current succession
laws, and many of these have already been identified by the Commission. As
long ago
as 1990, it produced a Report on Succession in which issues concerning
the rules
of intestate succession (where a person dies without making a will) and
the protection of a surviving spouse and children from disinheritance
were explored.
These issues remain unresolved and in the 40-odd years since the last
major legislation on this subject – the Succession (Scotland) Act 1964 – social
attitudes have changed, and family relationships have become more complex
with many more co-habiting couples and a proliferation of step-relationships
with
the increases in divorce and second marriages.
This project will look at the issues of who should be entitled to inherit
intestate estate and the complicated rules regarding the division of
heritable and moveable
property that currently apply, as well as whether the protection from
disinheritance for spouses and children should continue, and the form
such protection
should take.
Assignation of, and security over, incorporeal moveables
This is seen as a
long term project for the Commission, which is unlikely to devote resources
to it until completion of its review of the system
of land
registration. Incorporeal moveables include such things as company
shares, book debts, insurance policies and trade marks and other intellectual
property rights, and can have substantial value. The law in Scotland
is seen as
out of date in relation to these types of property, making commercial
dealings with them unwieldy and problematic. In addition, recent
changes in the
law
relating to floating charges, contained in the Enterprise Act 2002,
and
the inability to create fixed charges over book debts in Scotland,
are seen as
putting Scottish businesses at something of a disadvantage. A DTI
consultation in 1994 looked at the issue in general, but the Commission's intention
will be to give this area of law a thorough examination.
Unincorporated
associations
There are a number of practical difficulties facing unincorporated
associations such as sports clubs, residents' associations and
voluntary organisations,
which lack a separate legal identity. The Commission intends
to look at issues including the legal status of such associations and the
legal implications
of membership, and how they enter into contracts, hold property
and deal with claims against the association and its members.
Provocation,
self-defence, coercion and necessity
The Commission also proposes to review
the criminal law defences of provocation, self-defence, coercion and necessity,
and the
rules under
which these
are assessed, regarded by many in the criminal justice system
as unsatisfactory. The Commission
has recently completed a review of the defences of insanity
and diminished responsibility.
Advice to Government Departments and the
Scottish Administration
Many of the projects undertaken by the Commission
originate from requests for advice from Scottish Ministers or government
departments, usually relating
to a fairly narrow legal issue, although sometimes involving a wide-ranging
undertaking, such as the joint review of partnership law undertaken in
conjunction
with the Law Commission of England and Wales at the request of the Department
of Trade and Industry in 2003.
There are four such projects carried forward
into the Commission's Seventh Programme of Law Reform, referred to the Commission
by Scottish Ministers:
The protection of purchasers on the seller's insolvency
(Sharp v Thomson)
Scottish Ministers asked the Commission to consider issues
of the protection of a purchaser's title upon the insolvency of a seller,
arising from
the House of Lords decision in the case of Sharp v Thomson in 1997, in
which, despite
the lack of recording of a disposition of land by a seller company,
when a floating charge crystallised over the seller company's property,
the land was
held not to form part of the company's assets. A Discussion Paper
was published
in July 2001 in which the Commission suggested that there should
be a
specific legislative protection for purchasers. Since that time there
has been a
House of Lords decision in a similar case dealing with personal insolvency – Burnett's
Trustee v Grainger – which did not apply the Sharp v Thomson
decision. The effect of this decision on the Commission's deliberations
in this area
will need to be considered.
Interest on debt and damages
The Commission produced a Discussion Paper in
the middle of January on the law relating to interest on claims for money
in relation
to contracts
and
other obligations as well as judicial claims and other types
of dispute resolution, and proposals for reform.
Rape and other sexual offences
The Commission is currently reviewing the law
in this area, in the light of recent court decisions and plans to publish
a Discussion Paper by
the end of
the year.
Limitation in personal injury actions
The review on this topic concerns the
issue of the commencement of the three-year limitation period in which personal
injury
actions can be
raised (known as
the "triennium"). Current provisions are felt
in some cases to be too restrictive, particularly where
the claimant may be unaware of some critical
element that affects his claim, such as symptoms of some
industrial disease which do not manifest themselves until
some time after exposure to the cause
of the disease has stopped. Again the Commission's aim
is to publish a Discussion Paper by the end of the year.
The
full text of the Seventh Programme of Law Reform
is available from the website of the Scottish Law Commission
at:
http://www.scotlawcom.gov.uk/downloads/rep198.pdf
