The next 50 years: Scots law, law reform & the Law Commissions

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This year the Law Commissions celebrate their 50th anniversaries. Their impact on Scots Law has been profound, particularly since the advent of the Scottish Parliament: Commission projects have led to reform of the law of legal writings, sexual offences, diligence, bankruptcy, insurance, land registration and title conditions and to the abolition of the feudal system of land tenure. This impact has been part of a wider move towards legislation as the principal driver of legal change. This is a phenomenon which looks set to continue. As Professor Kenneth Reid put it, “[i]f the eighteenth century was the age of the jurist, and the nineteenth and twentieth the age of the judge, the twenty-first will surely be the age of the legislator.”[1]

The appetite for law reform among Commissioners and former Commissioners appears undiminished, their experience convincing them of both value and the need for significant reform driven by the Commissions’ work.[2] The early challenges in getting parliamentary time have been addressed to some extent by the introduction of expedited procedures for Commission Bills at both Holyrood and Westminster.

The landscape in which the Commissions now find themselves is very different from that into which they were introduced. The UK is part of the European Union and Scotland has its own parliament. The Faculty of Advocates’ monopoly on rights of audience in the Court of Session has gone and many of the major firms of solicitors have now merged with firms from south of the border. The rules around appropriate business structures for lawyers are the subject of intense debate. Legal scholarship has also changed profoundly with the increasing influence from law and economics, behavioural economics, empirical investigations, critical legal studies, and European Private Law.

The next 50 years could be a busy and fruitful time for the Commission but they will also pose challenges which could scarcely have been imagined in 1965. Therefore this seems an appropriate time to reflect on what the future holds, or should hold, for the Law Commissions both north and south of the border and what that might mean for Scotland.

The Glasgow Forum for Scots Law will host a series of discussions for consideration of these issues beginning with a presentation by Dr Shona Wilson Stark on “To take and keep under review all the law: the Law Commissions’ exercise of discretion” on Wednesday 23 September 2015 at 3.30pm.

The Forum meets regularly during term time.  Attendance is open to all: practitioners, trainees and students are warmly welcome. The format of meetings is flexible. Usually, it involves a short presentation followed by discussion. All discussions will be accessible via a live link webcast.

[1] K G C Reid, “Smoothing the rugged parts of the passage:  Scots law and its Edinburgh Chair” 18(3) EdinLR (2014) 315-340 at 338.

[2] G Gretton, “Of Law Commissioning” 17(2) EdinLR (2013) 119-151 and H L MacQueen, “Invincible or just a flesh wound? The Holy Grail of Scots Law” 14(1) Legal Information Management (2014j 2-14.

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