Law reform: securing a result

At the Scottish Law Commission we are not at all complacent about our place in the legal fabric of the country. We understand that we must continuously justify our value to Scots law and to Scottish society. Particularly in times of great pressure on public spending, we need to be flexible and forward-thinking in our outlook and approach. Since we cover both devolved and reserved areas of Scots law, we must ensure that we work effectively with both the Holyrood and Westminster Governments; to reflect the importance of these relationships it was particularly appropriate and pleasing that both the Secretary of State for Scotland and the First Minister made visits to the Commission this year. We must also engage constructively with the two legislatures and with the legal profession and all other relevant interests in the community we serve.

Those familiar with our premises in Causewayside will perhaps agree that we do not inhabit an ivory tower. But we must address any lingering misconception about that. Amongst other things, we must take full advantage of modern technologies to reach the widest possible audience. Consultation exercises must be carried out in a way that allows for maximum engagement with civil society; this should extend to creative use of social media. This is increasingly used by other law reform agencies as a means of promoting meaningful public debate. We need, in short, to continue to be accessible and to produce work that is intelligible, as was noted in our first annual report, and we must jealously protect our independence, as the first Scottish Law Commissioners also recognised.

At the same time we must ensure that we do not compromise on the high quality of our work. Worthwhile law reform, particularly when it involves major structural changes to established principles of private law, takes time. It has to be thought through rigorously and developed carefully, in close consultation with stakeholders. In this regard, the input of our project advisory groups has been crucial, as naturally our knowledge of day-to-day experience in particular areas is sometimes limited. However, we also have to accept that if we are perceived to take too long with major projects this can affect our reputation, particularly among stakeholders who seek change at the earliest opportunity.

Is it possible then to articulate a clear vision for the Commission in the modern era? I do not myself think that it is necessary to amend or replace the Law Commissions Act of 1965 in order to achieve this. No doubt in some respects the 1965 Act is expressed in language that is of wide and general reach; some may think there are advantages in that. Our core responsibilities are not, however, left in any doubt by the terms of the 1965 Act, and the values and principles underlying the Commission are clear.

I would like to take this opportunity to make two suggestions for possible improvements in the way the Commission works.

Cut out the delay

First, I believe that law reform in Scotland would benefit from a re-examination of the relationship between the Scottish Government and the Scottish Law Commission. I do not suggest that the constitutional independence of the Commission from Government should be at all weakened. Rather, the emphasis should be on improving the system for planning and carrying out our work in a way that seeks to promote a more concrete assurance of Government support for our legislative proposals from an earlier stage. There should also, I think, be closer contact and stronger engagement between the Commission and the relevant directorates of the Scottish Government during the currency of projects. 

The basic objective is to improve the prospects for earlier legislation on the Commission’s recommendations. Earlier implementation must, I think, continue to be an important aim. It should reduce the need for further consultation and for reworking of our proposals. Over the years there has been too great a delay in implementing some of the Commission’s work; the reasons for this are complex and now is not the time to go into them. One of the main challenges for the future is to address this issue. I acknowledge that there have been important improvements in recent times with the advent of a new procedure in the Scottish Parliament for uncontroversial law reform measures to be dealt with by the Delegated Powers & Law Reform Committee. The Scottish Government has been a strong supporter of this procedure and I commend it for that. But we must go further and try to move more quickly to ensure that Scots law is kept up to date and meets the rapidly changing needs of modern society.

With these thoughts in mind, the following points occur to me as a possible outline for a new scheme. They are not, in any sense, intended to be exhaustive or prescriptive; others may well have different and better ideas. My purpose is to stimulate debate with a view to improving the work of law reform. 

Partnering with Government

• There is, I believe, a need to align the planning of our work more closely with Government directorates when projects are being considered for inclusion in our programmes of law reform. The Commission needs to take full account of the Scottish Government’s strategic objectives when deciding on our proposed work. The Government, for its part, requires to be cognisant of the Commission’s considered views on the areas of Scots law that are in need of reform. Of course, it is ultimately up to the Commission to select its proposed projects on the basis of transparent criteria – that much flows from the principle of independence. And it is, at the end of the day, for the Government to approve the Commission’s proposed programme. 

• I believe that the selection of projects needs to take full account of the realistic prospects for legislative implementation within a reasonable time; to achieve this there has to be real and meaningful engagement between the Government and the Commission focused on this issue when projects are being considered for inclusion in our programmes of work.

• To promote orderly and systematic planning, there should be a specific requirement for each directorate of the Scottish Government to consider, sufficiently far in advance of the formulation of each new programme of law reform, whether to propose projects for the Commission from within its areas of responsibility.

• Ministers who intend to propose a project should identify how it aligns with the Government’s priorities and strategic objectives and why it would be a suitable project for the Commission to undertake. 

• It would remain the Commission’s responsibility to decide whether to include any nominated 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 event that a project nominated by a minister is accepted by the Commission, the Government directorate would be bound to support the Commission’s work during the project and to provide advice to ministers in responding promptly to the Commission’s final report. The nature and level of the support would vary as between projects and would have to be worked out on a case by case basis. It might in some instances extend to the secondment of officials to the Commission for a project or some part of it. 

• The relevant portfolio minister would be responsible for preparing an analysis of the Law Commission’s report and draft bill within a period to be agreed; in general a period of six months would seem reasonable. The purpose of the analysis would be to recommend whether legislation should be introduced. Under current arrangements the Scottish Government has agreed to provide a public response to Commission reports within three months of their publication, but this system is not working adequately. The three month time limit is too short to allow for a properly considered response to be provided.  

• If the Government accepts a ministerial recommendation for legislation, it should introduce a bill to the Scottish Parliament as soon as practicable. Many bills would be appropriate for the new parliamentary process before the Delegated Powers & Law Reform Committee, particularly if the criteria for using the procedure were to be widened.

• If a Commission recommendation for legislation is rejected, the Government would be bound to submit a report explaining the reasons for its decision to the Scottish Parliament within a period to be agreed; three months would appear to be reasonable. Any MSP would then be able to call for a parliamentary debate on the matter. This would open the way towards the Parliament itself becoming more actively engaged in the Commission’s work.

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.  

To some these proposals may appear unduly ambitious. I acknowledge that they would involve changes in established practices, and that the fine details would require refinement and careful thinking through. There are always problems and negative points that can be identified with any new system of this type. The attraction of such a scheme, however, is that it would provide a framework for addressing the difficulties that are liable to arise where too great a distance develops between Government and the Commission during our project work; the result of such a distancing effect can be that valuable law reform work is wasted or becomes out of date or has to be redone.  

Available expertise

The second area where I consider that there may be some possible scope for developing the way in which we go about our work relates 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. 

In voicing these thoughts, I do not for one moment intend to imply any criticism of current or past Commissioners, or indeed of the Commission’s legal staff, all of whom are solicitors seconded from the Government Legal Service for Scotland; they do an excellent job in difficult and demanding circumstances. It seems to me, however, that there may be advantages, in the case of some projects, in considering whether the engagement of academic or other consultants (perhaps even from the private sector) with established knowledge in particular areas would add value to our work.

The Acid Test

At the same meeting, Commissioner David Johnston QC gave an address entitled “How Law Commissions work: some lessons from the past”.

Taking as an illustration the “discoverability” provision in s 11(3) of the Prescription and Limitation (Scotland) Act 1973, the accepted interpretation of which was changed last year by the UK Supreme Court in Morrison v ICL Plastics, he highlighted the brief terms in which the preceding Commission report of 1970 was expressed, contrasting them with the much greater detail of subsequent reports on the same subject by the Scottish Commission in 1989, and the England & Wales Commission in 2001 – neither of which has however been implemented. He continued:

“These are cautionary tales for the law reformer. So far as non-implementation of the 1989 report is concerned, one lesson I would draw (without intending to criticise the Commission) is that it is crucial not to be wedded to a Platonic form of legal or analytical purity – in this instance, that was the notion that there was a single correct conceptual rule on when causes of action accrue... So when we are faced with substantial arguments that in practice the cost/benefit ratio of a rule is unfavourable, we do need to examine whether there is in fact another way forward. Otherwise the likelihood of any reform of the law is remote.

“A second point is this: back in 1989 (or even in 2001) it was not yet standard practice to carry out an impact assessment and to publish it with the report. Nowadays we do that, and we rely substantially on consultees to draw to our attention issues relating to costs and benefits as they affect them. It seems to me that from the point of view of implementation, this may be almost as important as the soundness of the proposals for reform. It will be interesting to see in due course whether reports backed up by a thorough impact assessment fare better in terms of implementation.”

Turning to the question of brevity versus detail, he commented: “There is a lot to be said for brevity, which is the soul of wit. But can it perhaps go too far? The answer is surely “yes”. In its 1970 report the Scottish Law Commission actually did — in one sentence — clearly state its policy intention on discoverability: that time should start to run against a claimant once he or she knew or ought to have known of the fact of loss or damage (and nothing more). That is precisely what the UK Supreme Court decided in 2014 that s 11(3) means. But in the previous 30 years or so, the Scottish courts had headed down an entirely different interpretative route. Probably there is no single explanation for that, but it may be significant that, even if the single sentence in the 1970 report was clear, it was only a single sentence, easily missed. It would have been easy to miss because the report did not discuss what the various options were or articulate the reasoning for the particular policy choice...

“Nowadays I think we sometimes say too much more. Recent practice has been to produce much longer and much more elaborate consultation papers and reports. [Taking comparative law as an example, it] is useful and important for the purpose of informing the Commissions about options that have been tried more or less successfully elsewhere. But it is far from obvious that the public at large needs to be burdened with all this material... And there must also be a concern that, the more Commission publications become burdened with complexity, the less it is possible to engage the interested public in responding to consultation exercises.

“More generally, it seems to me important always to focus on the purpose that Commission publications should serve. They should not be directed primarily, perhaps even at all, at seeking to resolve every point of legal controversy in the way that an academic work might. Since in any project of law reform detailed research does need to be carried out, it may be that the best way of presenting it, providing the necessary underpinning for the Commission’s proposals, and demonstrating that they are based on rigorous scrutiny of the law and the options for reform, would be to publish it separately. The possibility of online publication makes this straightforward.

“From the perspective of the consultation exercise, the touchstone seems to me to be that a consultation paper should spell out sufficiently what the policy options are and the main consequences which are thought to flow from adopting one or another. A report, on the other hand, will need to spell out sufficiently the policy issues that arise and the reasons for the ultimate policy recommendation. In order to optimise the prospects for implementation within a reasonable period, it will no doubt also be necessary for the report to convince Government that the consultation has been extensive and thorough, and that the policy options have been adequately considered, balanced and assessed. It is far from clear that much more is required. It is, as the example of the single sentence in the 1970 report was intended to demonstrate, possible to say too little. But it is equally evident that it is possible to say so much that consultees lose the will to comment.”

He added that now that Commission reports are accepted in court as an aid to construction, “The position of a person seeking to construe legislation is surely much improved if he or she has an underlying Commission report that clearly articulates the relevant policy issues and the reasons for the ultimate policy recommendation.”