Introduction
When the Scottish Law Commission came into the world in 1965 it was saddled with something of a handicap. The name given to it by its creator, the Law Commissions ActFootnote 1, revealed little about its function in life, other than conveying that it was a vaguely official body having to do with the law in Scotland.Footnote 2 The Act itself made it quite clear that the Commission's function was to keep the law of Scotland under review and to promote its systematic reform. But from the perspective of the general public, unaccustomed to reading through Acts of Parliament, the Commission was destined to operate in the shadows of the legal system, unless it could demonstrate the value of its work by promoting reform which was genuinely worthwhile and which succeeded in its purpose by simplifying, modernising and making the law easier to use. Yet, being able to command public recognition and respect for the value of its work was not the only hurdle which the Commission would have to overcome in trying to carry out this task. There were additional difficulties in the way of success: difficulties which derived, for example, from the relationship with government, from the constitutional structure of the UK, and from the perennial task of matching resources to workload.
Historical background
Some context to these problems can be provided by looking first at the historical background to the development of law reform in Scotland, up to 1965 and beyond.
There are more than 70 law reform agencies, similar to the Commission, in existence throughout the world, each established to keep the law of its respective jurisdiction under review, with the aim of making it more accessible to, and usable by, the ordinary citizen. Their creation in the second half of the 20th century reflected a new era in law reform, based on the recognition that “the whole body of the law stood potentially in need of reform, and [that] there should be a standing body of appropriate professional experts to consider reforms continuously.”Footnote 3 Although the two British Commissions were not the first of these new post-war bodies to be set up, there is in fact a long tradition of systematic law reform in Britain, and not least in Scotland.
As early as 1425, an act passed in the third Parliament of King James I ordained that:
“sex wise men and discreete, of ilk ane of the three Estaites, quhilk knawis the Lawes best, sall be chosen … that sall see and examine the Buiks of law … and mend the Lawes that neids mendement.”Footnote 4
Quite what these trustworthy men achieved or whether, indeed, they were ever formally convened remains obscure. However, this was an early recognition of the need for systematic restatement and clarification of the existing law, and it may be said to have resumed in the works of eminent Scottish jurists of the 17th, 18th and 19th centuries, such as Craig, Stair, Bankton, Erskine, Kames, Hume and Bell. These were known collectively as the Institutional Writers, because their writings were based on the classical Roman pattern of Justinian's Institutes and constituted attempts to summarise, or codify, the whole of the law of Scotland. Further afield, in Europe, the codification of French civil law under Napoleon provided additional stimulus for reviewing the law in both Scotland and England in a systematic way. As a result there followed, during the 19th and 20th centuries, numerous Royal Commissions and government committees charged with looking at various aspects of the law and institutions of Great Britain.
Against this background, and given the fact that the continuation of a distinct and separate Scottish legal system had been guaranteed in the Treaty of Union of 1706Footnote 5, it may seem surprising to note that the birth of the Scottish Law Commission as an independent law reform body was attended by a certain amount of controversy in Scotland.
There was, for example, the suspicion that the need for a separate Scottish Commission had been acknowledged only as something of an afterthought in the gestation of the 1965 Act. In Law Reform Now Footnote 6 a groundbreaking work sponsored by the Society of Labour Lawyers and published in 1963, Gerald Gardiner QC (who was to become Lord Chancellor in the Labour Government of 1964) and Dr Andrew Martin had started from the premise that “much of our English law is out of date, and some of it shockingly so.” However, this was possibly less of a slight, by omission, to the Scottish system than a recognition that it was English law, rather than Scots law, which was in such a mess and therefore more in need of reform. By the time of the 1965 Government White Paper prefiguring the Act (Proposals for English and Scottish Law Commissions Footnote 7) this apparent omission had been rectified, both in the title of the paper and, indeed, in the explicit acknowledgement that the arguments for reforming English law did not apply to the law of Scotland “with the same force”.
However, another source of controversy at the time came from nearer to home in the shape of the Scottish Law Reform Committee. This body had been set up in 1954 to undertake reform work in Scotland, but was handicapped as a result of its part-time status from being wholly effective as an instrument of systematic law reform and was now set to be superseded by the arrival of the Commission. The hostility which was generated because of the Committee's imminent demise has been documented elsewhere, but it left a lingering hint of sourness among some sections of the Scottish legal establishment.Footnote 8
Nevertheless, despite this slightly shaky background, the Commission immediately embarked on its first programme of law reform and by 1968 significant progress had been made. Professor David Walker observedFootnote 9 that the Commission's (second annual) report was “a record of much painstaking activity for the preservation and integrity of Scots law and of continuing to work on bigger projects of long-term reform.” He thought that the “Commission's labours deserved the attention and support, by comment and constructive criticism, of every Scots lawyer”. And yet, by 1985 when reviewing the first twenty years of the Scottish Law Commission's performance, Professor Walker could then, by contrast, muster only “one muted cheer.”Footnote 10 He accepted this might seem unfair, given that he had never worked inside the Commission and could not therefore “fully appreciate the pressures, difficulties and problems the Commissioners face”. But his less than ringing endorsement reflected the tension and growing gap between what could be seen on the one hand as the ambitious provisions of the Law Commissions Act 1965 and, on the other, the public's – or rather the legal profession's – perception of its practical results. Even so, Professor Walker was in little doubt that it was “better to have a permanent body concerned with law reform than leaving it to occasional Royal Commissions, Departmental Committees or other rather haphazard investigations”.
Constitutional hurdles
Were such tensions between promise and reality inevitable? As long as the Westminster Parliament in London held responsibility for enacting Scottish legislation there could be no assurance that sufficient parliamentary time would be devoted to Scottish measures. The result was that many law reform recommendations made by the Commission in its reports remained (and still remain) unimplemented by the government. Not that a poor record of implementation was peculiar to the Scottish Law Commission: in England and Wales, the Law Commission's record of implementation was causing similar concern, and indeed continues to do so.Footnote 11 This suggests that other barriers to implementation might be operating, quite apart from the difficulties faced by Scotland as a minority partner with a minority voice in the Union. And indeed one obvious barrier – which exposes a gap in the 1965 Act – is the absence of any duty placed on the government to give a response, positive or otherwise, to final recommendations of either of the Law Commissions, let alone introduce bills in Parliament to implement those recommendations in legislation.
Government does of course have the right to decide on the content of its legislative programme. But a poor record of implementation can have serious implications for the integrity of law which is acknowledged to be in need of reform. It also impairs the fundamental right of the citizen to be subject to laws which are, in the words of the 1965 White Paper, “accessible, intelligible and in accordance with modern needs”. Moreover, failure to implement recommendations for reform represents wasted work and hence wasted public resources. This gap in the legislation may soon be addressed, in England at least. The Lord Chancellor recently announced in the House of Commons his intention to introduce “a process within Government for taking forward Law Commission proposals that were broadly agreed”Footnote 12 in the context of the draft Constitutional Renewal BillFootnote 13, although this is currently on hold at Westminster.Footnote 14
In Scotland there is no doubt that the constitutional changes brought about in 1999 by devolution and the setting up of the Scottish Parliament have paved the way for improved attention to Commission proposals. In his introduction to the Commission's annual report for 1998–99Footnote 15 the then Chairman, Lord Gill, records that “the establishment of the Scottish Parliament has had a considerable impact” and that “on the whole, the new legislative opportunities have benefited our work.” Major pieces of legislation – on adult incapacityFootnote 16 and land reformFootnote 17 for example – have since then arisen out of Commission recommendations.Footnote 18 Even so, it is worth noting that despite the greater amount of parliamentary time now available for Scottish business, the rate of implementation has not in fact significantly improved. The 1965 Act still applies and there can therefore be no presumption that the Commission's proposals will be given serious consideration or acted upon. Indeed the government of the day in Scotland (as is currently the position) may have difficulty in commanding a parliamentary majority sufficient to carry through its legislative programme and any Commission proposals included in it.
However, it should be remembered that the law reform projects undertaken by the Commission are intended to address predominantly legal issues rather than political ones. And, although they must rely on having Government support if they are to have any chance of being implemented in legislation, they are by and large not tied to party political agendas and are consequently less liable to fall foul of parliamentary voting patterns. This political neutrality holds true despite the fact that some projects are undertaken specifically as a result of a ‘reference’ (request for formal advice) from the government and might run the risk of being perceived as too closely bound up with party policy. Examples of references made to the Commission (which, although highly topical and socially controversial, are however essentially non-political) include the recent project on sexual offences, which recommended a redefinition of the crime of rape more closely in line with changing social attitudes, and the project on double jeopardy, which involves re-examining the principle that an accused person cannot be tried twice for the same offence.
The law reform process
References from government, arising at short notice and usually requiring a response within a tight timescale, are by their nature unpredictable and may be received by the Commission at any time. However, the main basis of the Commission's ongoing work is set out in its five-yearly programmes of law reform projects and published in its numbered reports series. The current programme (the seventhFootnote 19) runs until the end of 2009 and work is already underway to draw up the eighth. But what is the source of the programme's content? Who, in other words, decides which areas of the law are in need of reform and what is the process involved?
Initially, it is the Commissioners who select possible programme topics for public consultation. In making their selection, they apply three principal criteria: importance, suitability, and availability of resources. Importance concerns the extent to which the existing law is unsatisfactory (for example, unfair, unclear, unduly complex or outdated), and the potential benefits which are likely to follow from reforming the law. In assessing suitability, Commissioners look at whether the issues concerned are likely to fit in with the Scottish government's own programme of strategic objectives; whether they are predominantly legal rather than political, and whether there might be any other agency better placed to examine the topic in question. Thirdly, the assessment of resources means taking into account the available expertise and experience of Commissioners and legal staff; and, in relation to projects where there might be a substantial role for a consultant, whether adequate funding would be available. Furthermore, care must be taken to ensure there is a mix of projects in terms of scale and timing in order to achieve a balanced workload among Commissioners and to enable effective management of the programme.
Once a preliminary list of likely programme topics is drawn up, consultation on developing its final form takes place with the Scottish government, the legal profession, a wide range of other interested parties and organisations, and with the general public. Then, after considering the comments received, the Commission finalises the programme and presents it to Scottish Ministers for formal approval. Among the projects included in the current programme are, for example, topics such as leasehold tenure; land registration; judicial factors; succession; trusts; unincorporated associations; criminal law defences; the assignation of, and security over, intangible assets in commercial law. The procedure for tackling each project follows the same pattern: detailed research is carried out into that particular area of the law and the options for reform are examined. Based on this preliminary work, a discussion paper is produced for public consultation, describing the current state of the law and inviting comments on the possible options for reform identified. Finally, taking account of the responses received, a report containing the Commission's recommendations for reform (together with a draft bill for their implementation) will be submitted to the government. At that stage the Commission's role in the project is effectively at an end, unless (as sometimes happens) the government seeks further advice during the implementation process.
Some projects are undertaken jointly with the Law Commission of England and Wales if UK, as opposed to purely Scots, law is affected. For example, projects on statute law revision (a tidying up of the statute book by repealing obsolete legislation) and consolidation (the re-enactment in one act of provisions on a specific topic which are scattered over several statutes) often fall into this category. In addition to the examples of references already mentioned, the Commission has also addressed five others during the Seventh Programme. References are not imposed by the government. Rather, each one is subject to a process of negotiation and only accepted by the Commission if it is considered feasible to tackle it. However, one consequence of taking on such references is of course an unavoidable diversion of the Commission's resources away from work being carried out on projects under its programme and resulting delays in completing them. In some cases therefore, projects need to be carried forward to the next programme if not yet complete. This only serves to highlight the fact that the Commission's resources are strictly defined in terms of staffing and funding, leaving little room for manoeuvre to cope with the competing demands for reform of the law.
Resources: past, present and future
What, then, are the resources at the Commission's disposal?
Staffing
Funding for the Commission comes from the Scottish government's Constitution, Law and Courts Directorate. At the same time, the Commission retains its independence from government as an advisory non-departmental public body established by statute. In terms of personnel, it is led by five Commissioners (who are not civil servants but are appointed by Scottish Ministers), normally holding office for a period of up to five years which can be renewed. The Chairman is by tradition a judge of the Supreme Courts in ScotlandFootnote 20; the four other Commissioners must be chosen from holders of judicial office, advocates, solicitors or university teachers. The Chairman and one other Commissioner are part-time. Commissioners take the lead in project work, and, ultimately bear corporate responsibility for the final reports submitted to government. They are supported by a Chief Executive, who coordinates the Commission's overall business strategy and, normally, five senior legal staff acting as project managers. All of these are members of the Government Legal Service for Scotland. In addition, five legal assistants – usually recent law graduates – are recruited direct by the Commission on one or two year contracts to provide legal research support. There are a further five non-legal support staff, including the librarian, seconded from the Scottish government.
Library and research
The 1965 Act clearly implied that the work undertaken by the Commission would need to be underpinned by adequate research resources to enable it to keep under review all of the law of Scotland, as well as to gather information about the legal systems of other countries for comparative purposes. This may be one reason why, shortly after its foundation, the Commission occupied premises in Edinburgh University's Old College, immediately adjacent to the Law Faculty and its library collections. Although the Commission later moved to its own more spacious accommodationFootnote 21 at 140 Causewayside in 1976, it has continued to maintain close links with the university – through the ad hoc teaching roles carried out by members of its legal staff and Commissioners (several of the latter holding law professorships at the university) – as well as through an annual donation to the Law Faculty which allows Commission staff access to the Law & Europa Library and its facilities.
In its early years, the Commission began to build up its own library of legal resources, acquiring a core collection of works of relevance to Scots law, both through donation and judicious purchase from second-hand booksellers. Advice on content and organisation was, at various times, sought, and generously given, by Muriel Anderson of the Institute of Advanced Legal Studies and Don Raistrick of the Law Commission in London (later at the Lord Chancellor's Department). However, it was not until 1983 that the Commission appointed its first professionally qualified librarian, Teresa Macdonald, to begin the task of properly organising and cataloguing the stock and demonstrating the scope of research assistance which a librarian could offer in support of the Commission's work. This initial appointment was made at the basic civil service professional assistant librarian grade. Since then the post has, while remaining solo without professional support, been upgraded twice – in some recognition of the pivotal role which it plays within the Commission in facilitating the exploitation of information resources.
Information
In this electronic age, information has expanded well beyond library walls and the role of the information manager has correspondingly grown to encompass the management of a multiplicity of sources with potential as research tools. This is particularly true of small organisations like the Commission, where the full range of tasks covered by larger organisations has to be tackled, but where specialist expertise among staff is necessarily thinly spread. Consequently, in the Commission's case, the librarian also has responsibility for both the public website and the local intranet, as well as contributing through in house review teams to work in areas such as publications and publicity, IT systems and strategy, and records management – wherever there are questions concerning the organisation, presentation and exploitation of information as a resource. Among these review teams, the library committee is particularly important from the librarian's point of view. With membership drawn from all areas of the legal staff, it represents the formalised interface between information provider and information user, and operates at the Commission to give a steer to overall library and information strategy – from decisions on collection development to the identification and best use of research resources within the available budget.
Information is all-pervasive and needs to be treated as a valuable asset. To that extent there must always be a role for expertise in information-handling, coupled with detailed awareness of the organisation's work, if that asset is not to be squandered. This does not of course guarantee that the specific role of information manager will necessarily always be recognised as essential to the efficient functioning of the organisation. Even so it is encouraging to see government endorsement for the recent Information Matters reportFootnote 22 which calls for the creation of “a culture which supports strong information and knowledge management … as a key corporate function of government”. On the other hand budgetary strictures, as well as significant changes in the creation and use of information brought about by online developments, have led everywhere in recent years to a demand for more fluid and leaner staff structures in order to meet those changes. This trend is likely to continue, particularly in the current economic recession.
Conclusion
In much the same way, there cannot even be any guarantee that the existence of independent law reform bodies will continue to be supported by governments indefinitelyFootnote 23. After all, nothing in this world lasts forever - except perhaps diamonds, true love and polystyrene food trays. Despite that, we can at the very least be confident in asserting that the 1965 Act has already outlasted that of 1425 in its beneficial effects on Scots law. And, as to the future, if judged by recent comments describing the (criminal) law of Scotland as “often unprincipled, incoherent, vague and unjust”Footnote 24, it seems there is a great deal of reform work still to be done.
Biography
Nick Brotchie taught English in Germany before joining the Foreign and Commonwealth Office Library in 1978. He returned to Scotland to work at the Scottish Office Library in 1981 and has been Librarian at the Scottish Law Commission since 1989.
