Early action by the Scottish Government on three key reform proposals is called for the Scottish Law Commission in its annual report for 2018, published today.

In his foreword Lord Pentland, who left office as chairman at the end of the year, writes that "Whilst it is encouraging to note that the Scottish Government intends to move ahead with our recommendations on defamation law, on judicial factors, and on succession, important proposals for reform in other key areas are yet to be taken forward."

The three he highlights in particular are: 

  • trust law, where the position is "concerning": key stakeholders have emphasised the need for reform of a century-old law in an area of considerable importance to society and the economy, but the Government has not yet provided a substantive response to the Commission's 2014 report;
  • similar fact evidence and the Moorov doctrine, a means of proving repeat sexual offences, for example, on which the Commission reported in 2012 and reform is "urgently needed because the law is unclear and gives rise to real difficulties in practice"; and
  • moveable transactions, the subject of a 2017 report, where reform is essential to enable Scottish businesses to gain access to finance and to reduce the advantage held by businesses regulated by English law.

"I encourage the Scottish Government to move forward rapidly with its consideration of our recommendations", Lord Pentland states.

He also calls for the "unduly narrow" criteria for progressing law reform bills through the Delegated Powers & Law Reform Committee of the Scottish Parliament to be reconsidered; and hopes that other committees of the Parliament will be more4 active in dealing with Commission measures than they have in recent years.

During the year the Commission published its report on formation, interpretation, remedies for breach and penalty clauses, completing its review of contract law, and discussion papers on s 53 of the Title Conditions (Scotland) Act 2003 and on aspects of termination of leases, along with an updated version of its proposed Trusts (Scotland) Bill and a joint consultation on automated vehicles along with the Law Commission for England & Wales.

It also began work on its 10th programme of law reform. Projects are proceeding on heritable securities, further aspects of leases, and family law as respects cohabitation, but it may be next year before discussion papers are published on each of these. A discussion paper on surrogacy (also a joint project) is expected to be published this spring.

Click here to view the report.