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.

This project, following a joint consultation in 2010, aims to modernise and clarify the safety regime governing level crossings in Great Britain. It aims to make it easier to close level crossings where necessary and preserve rights of way where appropriate. It recommends that safety should be regulated entirely by the Health and Safety at Work, etc Act 1974, and approved codes of practice and guidance under new powers given to the Office of Rail Regulation. Modern safety regulation should also take precedence over safety provisions in special Acts. It is also recommended that the Level Crossings Act 1983 be repealed. In place of level crossing orders under that Act, there should be regulations making provision for level crossing plans which may be entered into voluntarily in respect of public and private level crossings if the parties whish to create such an arrangement. Also recommended are creation of duties on railway operators and traffic authorities; clarification of boundaries between the enforcement responsibilities of the Office of Rail Regulation and those of the Health and Safety Executive; and disapplication of obsolete statutory provisions. Most of the recommendations for reform of the law are given effect in the draft Level Crossings Bill and draft Level Crossings Plans Regulations both of which are included in the report

This joint report by the Law Commission and Scottish Law Commission considers the redress available to consumers who have been the victims of misleading or aggressive practices by traders. Currently consumers have to rely on private law rights if they want to take action. The Commissions' review found current private law in this area to be fragmented, complex and unclear, and recommends new legislation to provide redress to consumers who experience misleading and aggressive practices in their dealings with traders. The aim is to clarify and simplify the current law on misleading practices, and to improve the law on aggressive practices by filling the gaps in the current law. Limited reform, targeting the most serious causes of consumer detriment, is proposed. The report follows the Consumer Protection from Unfair Trading Regulations 2008 in most, but not all, respects. Recommendations are made on liability and remedies. Consumers would have the right to unwind the transaction (get a refund), or receive a discount on the price. Additional damages may be recoverable to compensate for additional loss. The report also considers the specific area of unfair payment collection.

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

Dated December 2013

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

Generally, when we contract with another party the law provides rights and remedies for both parties, but not for anyone else. This is sometimes known as the principle of privity of contract. Although other people may be affected by the contract, they are not treated as being a party to it. But there is another principle, that of freedom of contract, which is also relevant: it would allow the contracting parties, if they so wish, to provide rights under the contract for third parties. The way in which these two principles interact is at the heart of this Discussion Paper. Although, like most other European jurisdictions, Scots law has, for centuries, recognised third party rights in certain situations, it needs modernisation: much of the case law is very old, and it is neither clear nor comprehensive. Many common law jurisdictions, such as England & Wales and New Zealand have recently introduced statutory third party rights for the first time, while longer-established rules elsewhere have also been refreshed. Prompted by comments from solicitors and others that the Scots law is too inflexible and uncertain, the Scottish Law Commission has carried out a thorough review. This paper present their proposals for reform and invites discussion