Douglas Cusine argues that it is unacceptable to have 10 reports by

the Scottish Law Commission lying around without even being debated.

EARLIER this year, the Government published a paper entitled Scotland

in the Union: A Partnership for Good. In his introduction, the Secretary

of State for Scotland says: ''The Government's decision to consider ways

of improving the government of Scotland . . . was prompted by a

recognition that there is in Scotland a real concern that the Union may

not have been functioning as effectively as it might.''

Chapter 6 deals with ''Scotland in Parliament'' and in the context of

parliamentary procedures, there is mention of a number of criticisms,

for example, that ''there is insufficient time in its [Westminster's]

crowded schedule for Scottish affairs to be fully and properly discussed

. . . It is often argued that there should be more scope for Scottish

legislation to keep up with development south of the Border, to

implement measures of Scottish law reform more promptly and to provide

greater opportunities to make changes, unique to Scotland, which require


The paper continues: ''Some of these criticisms have merit . . . ''

The criticism just mentioned is one which is of acute concern to

Scottish lawyers who promote law reform measures, but see little

prospect of many of their proposals, even non-controversial ones, being


There is a variety of sources of law reform proposals, but the most

significant one is the Scottish Law Commission which was set up in 1965.

It is created by and answerable to Parliament and its function is to

report on areas of Scots law which may require reform. If reform is

required, an Act of Parliament will usually be necessary.

The SLC is chaired by a Court of Session Judge assisted by full-time

and part-time commissioners and other distinguished lawyers.

It is a matter of great concern to lawyers and ought to be of equal

concern to the Scottish public that, at present, 10 of the commission's

reports have not been implemented and many of these have not even been

allocated time for debate in Parliament. Scotland in the Union is an

attempt to persuade us that things may change.

The commission has programmes for law reform which are agreed upon by

the Government. The commission then identifies an area of law which it

investigates by considering the current position and often also how

other countries deal with the issue. A discussion paper is issued for

comment by anyone interested.

Once the commission has considered the comments, it produces a report

which it presents to the relevant minister, usually the Lord Advocate.

The report contains the commission's proposals for change and it

incorporates a draft Bill which makes life easier in that the work which

the Parliamentary draftsman would otherwise have to do is already done.

At that point, the commission's work on that particular item is


It is a matter of regret that many of these reports on important

matters such as succession, divorce, the passing of risk, have not even

been discussed in Parliament. It is for Parliament to decide on what

laws should be changed and how, but it is not acceptable to have these

reports lying somewhere without even being debated.

The explanation, or the excuse, which is most frequently given is the

shortage of parliamentary time, something which Scotland in the Union

seeks to address by developing the role of the Scottish Grand Committee.

Many of the law commission's proposals are controversial, but some are

not, and many non-controversial proposals for legislative change are

submitted not only by the commission, but also by the Law Society of

Scotland and other bodies. It is both disturbing and annoying that not

even these can be implemented quickly.

Some non-controversial measures are incorporated into Law Reform

(Miscellaneous Provisions) Acts, the last one being in 1990. That Act

was actually highly controversial in that it contained far-reaching

proposals on the provision of legal services. The Government is probably

still licking its wounds from the battle which it had with the legal

profession over what many regarded as ill-considered proposals.

Cynics may suggest that the Government is unlikely to agree to another

Miscellaneous Provisions Bill in the near future, but it has to be

accepted that it is probably the only way of seeking changes in a number

of areas which are unrelated, and non-controversial.

Whether the Government's proposals will improve matters remains to be

seen, but one recent incident does not inspire much in the way of

confidence. It relates to a non-controversial report by the Scottish Law

Commission on the passing of risk in the sale of heritable property.

The Government has apparently said that it does not intend to

introduce legislation on this topic.

At present, the law provides that when a contract for the sale of

heritable property (the commonest example being a house) is completed,

the risk of destruction of the property passes immediately to the buyer

who must therefore insure the property against that risk, even although

he will not take over possession of the property for some time,

frequently at least six weeks.

The problems which can arise were highlighted in a case in 1979 where

property which was being acquired by Glasgow Corporation was burned down

after the contract had been concluded but before the corporation took


The court, following the rule in Roman law, held that the risk passed

to the buyer immediately the contract had been concluded.

Since that decision, lawyers invariably provide in their contracts

that the risk will not pass to the buyer until the date of entry, i.e.

when the buyer moves in. This is sensible, because in most cases the

seller remains in the property until that date, or very close to it, and

so is in a better position than the buyer to look after it properly.

It means that the property needs to be insured only by the seller and

not by the buyer as well. The buyer needs to insure the property only

after he moves in.

The Scottish Law Commission accepted the sense of that and suggested

in a report published in 1990 that the law ought to be changed to make

risk pass at entry.

This would not be a universal rule and it would be possible to provide

that the risk would still pass at the conclusion of the bargain. That is

usually done where the sale is being carried out by a lender when the

debtor has failed to keep up the mortgage.

The reason given by the Government for not implementing this report is

not that it is controversial, nor is it because there is a lack of

parliamentary time. The Government's reason is apparently that, because

lawyers provide in their contracts that risk will pass at entry, there

is no need to change the law at all.

This is not satisfactory. Following upon the decision in the Glasgow

Corporation case, lawyers altered their practice and the Government

could have easily ascertained what the practice was. That being so, one

has to ask why it allowed the Scottish Law Commission to embark on the

project on risk if it knew that it had no intention of implementing the


Another point is that we all make mistakes and if a solicitor does not

have the necessary provision in the contract, the risk will pass to the

buyer immediately.

The buyer would have recourse against the solicitor's insurance, but

such a claim would be avoided, along with the inconvenience to the

buyer, if the law were altered.

There are many aspects of the law which are unclear and if the

Government is not prepared to legislate in such circumstances, Scots law

will fossilise. I began with a comment from Scotland in the Union; it is

appropriate to end with one also.

''The principal purpose of a legal system must be to provide effective

and efficient administration of justice . . . Clearly, that purpose can

be achieved only if the legal system can adapt and develop in keeping

with changing social circumstances . . . [The] changing pace of social

circumstances makes it necessary to keep the law up-to-date. This

suggests the need to look critically at current parliamentary procedures

to see whether ways can be found of expediting them and thus facilitate

essential law reform.''

How is that to be reconciled with their stance on the Scottish Law

Commission's non-controversial report on the passing of risk?

I remain hopeful that the Secretary of State for Scotland will take up

the cause of law reform with vigour and zeal. That seems to be the

intention behind Scotland in the Union. It remains to be seen when.

* Professor Douglas Cusine is Hugh McLennan Professor of Conveyancing

and Professional Practice of Law, University of Aberdeen.