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

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

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