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The project to consolidate bankruptcy legislation in Scotland
followed a suggestion by the Accountant in Bankruptcy, an executive
agency of the Scottish Government, which supervises and administers
the process of bankruptcy. Although most of the law proposed for
consolidation is already contained in a single Act, the Bankruptcy
(Scotland) Act 1985 (the 1985 Act) that Act has been so heavily
amended, on so many occasions, that it has lost coherence and
rational structure. Many of its provisions (whether sections,
subsections or paragraphs) are inordinately long; and numbering has
become complex and unwieldy. The primary aim of consolidation is to
make the legislation on a particular area of law more accessible
for practitioners and for those affected by it, thereby saving time
and money. The amendments outlined in Chapter 2 are intended to
remove anomalies, to treat like cases in the same way or to omit
provisions that are no longer of any practical utility. The
amendments are given effect in the Commission's draft consolidation
Bill (appendix 2). Considerations of legislative competence and of
giving effect to certain provisions in other jurisdictions of the
United Kingdom require the various provisions to be divided between
a draft Bill of the Scottish Parliament and a draft order of the
United Kingdom Parliament under section 104 of the Scotland Act
1998. A draft order is included at appendix 3.
The background to the project is a decision of the European Court
of Human Rights in a case involving a person with autism, who had
been admitted to Bournewood - a psychiatric hospital in England.
The care he was receiving there had some restrictive features, and
requests by his carers for him to return home were refused. The
Court's decision was that there had been a breach of his right to
liberty, as protected by Article 5 of the Convention. That result
caused a change in the law of England and Wales. Admissions to
long-stay hospitals for people with autism or other neurological
conditions or disabilities who lacked decision-making capacity
could no longer be regarded as voluntary and informal. A new system
was introduced to authorise these admissions. The changes also
affected some admissions to care homes.The Commission is therefore
examining the position in Scots law concerning the right to liberty
of adults with incapacity in residential facilities.The main
questions raised by the Discussion Paper are - is Scots law as it
currently stands adequate to meet the requirements of the European
Convention in this area? And if not, how should it be changed?In
particular, there is a need to decide if there should be a new
procedure for authorising deprivation of liberty in residential
care for adults with incapacity. If there should, what should that
process be? And, very importantly, what sorts of care and what type
of facilities should be regarded as involving deprivation of
liberty for those who live there
A factor is a person appointed to look after property belonging to
another. A judicial factor is a person appointed, and supervised,
by the court to gather, hold, safeguard and administer property
which is not being properly managed. The existing legislation on
judicial factors is archaic, complex, and no longer fit for
purpose. With approximately 115 judicial factories at present, and
an average of 12 new appointments each year, there is still a
strong need for a regime in Scotland enabling the appointment of a
responsible and accountable officer to administer and manage
estates in the myriad circumstances in which there is no other
suitable remedy. A common example today is a judicial factor
appointed at the instance of the Law Society of Scotland to firms
of solicitors where there has been a breach of professional
practice and the firm's liabilities exceed, or appear likely to
exceed, its assets. Another example would be where those running a
charity appear to have been managing it inappropriately. This
report contains a set of recommendations which, if implemented,
would put in place an updated and comprehensive regime that would
be of benefit to all concerned. The new regime would bring clarity
(for example, as to the powers and duties of a judicial factor and
the appropriate processes to be followed), accessibility and
efficiency to this vital but outmoded area of the law. Furthermore,
the flexibility introduced by the regime would mean that the
solution of appointing a judicial factor could become more
attractive in a wider range of circumstances
The report Review Of Contract Law: Report On Formation Of Contract:
Execution In Counterpart (SG 40) examines the specific difficulties
of making a formal document, such as a contract, binding without
all signatories having to meet to do so, or all having to sign the
same physical copy; a process referred to as 'execution in
counterpart'. The main recommendations of the report include: a
document may be executed under Scottish law by parties subscribing
to a counterpart of the document remotely from each other, and
delivering their subscribed counterpart to the other parties;
delivery may be to a person nominated for the purpose rather than
to the other parties; delivery of a traditional document may be
effected by electronic means; a document takes effect either when
every party has subscribed and delivered its counterpart, or at
such a later date as parties may agree; if desi
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