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civil law - clear rights and responsibilities for today's world
2 The civil law affects virtually every aspect of our daily lives as we raise our families, earn our living, look after our property, protect our environment and community, and settle our disputes.
2.1 The Scottish Parliament can legislate on very many areas of civil law, stretching from family law, property law and inheritance to public safety, economic development, education and health. One of the major benefits of the Scottish Parliament is the opportunity it provides to keep Scots law - the distinctive body of law applying in Scotland - up to date and in good repair. A core function of the law is to regulate relationships, whether these arise in a personal, community or business context: to do this effectively it must evolve as our society evolves and as our values develop.
2.2 The law is a powerful instrument for advancing public policy. It is not the only, or always the best, instrument but it can be a potent force for change, establishing new rights or duties and helping to modify expectations and attitudes. During the present session of Parliament, we have chosen to give a strong focus to reform of various aspects of family law where the law needed updating to reflect the way we live now and to provide fair remedies, and protection for the vulnerable, when things go wrong. There are solid achievements in that field including the creation of a new legal status for civil partners; a package of important changes to the law on marriage, divorce, and the rights of cohabitants; and child protection measures. These law reforms provide essential underpinning for our social policy objectives to promote stable families and in particular to give children the best start in life.
2.3 Of course, we have done much more than reform family law, as the following paragraphs set out. Across all our civil law reform efforts, the Executive has a number of key aims:
Civil law reform - key aims
- to keep the law up to date and relevant to the way we live now;
- to give priority to measures which protect the vulnerable in our society; and
- to harness the power of the law to our social and economic agenda.
WHAT WE HAVE DONE
2.4 Since devolution, we have reformed the civil law in several significant areas.
2.5 The Adults with Incapacity (Scotland) Act 2000 introduced new ways to manage the financial affairs and safeguard the welfare of people who are unable to make some or all decisions for themselves. It helps people plan for their own future in case they are ever unable to manage their own affairs, and it provides a number of ways in which carers and others can manage the affairs of someone who is not able to do so personally.
2.6 We have undertaken a co-ordinated programme of property law reform, based on proposals by the Scottish Law Commission. The Abolition of Feudal Tenure etc. (Scotland) Act 2000 abolished the feudal system of land tenure in Scotland and replaced it with a system of outright ownership of land. The Title Conditions (Scotland) Act 2003 modernised and clarified the law on real burdens and set out a framework of rules for the imposition of conditions in the system of outright ownership of land, complementing feudal abolition. The Tenements (Scotland) Act 2004 completed the programme by reforming the law of the tenement.
2.7 Two pieces of legislation passed by the Westminster Parliament but which were supported by the Executive and the Scottish Parliament recognised changes in public attitudes towards gay and lesbian couples and transsexual people. The Civil Partnership Act 2004 creates a new form of legal relationship for same-sex couples who wish their commitment to one another to be recognised in law. The Gender Recognition Act 2004 introduced a mechanism whereby transsexual people have the opportunity to seek legal recognition in their acquired gender.
2.8 The Family Law (Scotland) Act 2006 modernises several aspects of family law; the legislative changes, combined with the information initiatives outlined in Chapter 4, reinforce the fundamental principle that children's welfare has to be at the heart of family law.
WHAT WE ARE DOING
2.9 Recognition of the rights set out in the European Convention on Human Rights now underpins the whole of our legal system.
The Scottish Commission for Human Rights Act 2006 provides for the creation of a body with primarily an education and awareness-raising role, working to dispel ignorance and misunderstanding about the substance of human rights law and how it affects people's daily lives. The new Commission will be accountable to the Scottish Parliament and we will work with the Parliament and other relevant interests to help set it up.
2.10 The Adults with Incapacity (Scotland) Act 2000 has already achieved a great deal in terms of facilitating and improving the management of the personal and financial affairs of people with some degree of incapacity, while ensuring that they retain as much autonomy as they can. No piece of legislation is perfect, however, and experience since the Act was passed has shown that there are some provisions in it that would benefit from being looked at again. The legislation to take forward some of the recommendations of the Scottish Law Commission's report on Vulnerable Adults - the Adult Support and Protection (Scotland) Bill - gives us the opportunity to make the changes needed. The fact that we are able to do this within a short time of identifying the need for changes demonstrates once again the benefit of Scotland having its own Parliament.
2.11 The law dealing with insolvency is being revised to improve the procedures relating to bankruptcy and diligence, and the legislation will also enable reform of protected trust deeds. These allow a person who is insolvent to voluntarily hand over his or her assets to an independent professional person to manage for the benefit of creditors, without a full sequestration. Our aim is to make the system more transparent and ensure that there is a reasonable balance between the benefits the procedure offers to debtors and the return that it makes available to creditors.
2.12 In September 2006 we introduced in the Scottish Parliament the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill to address certain issues around claims for non-financial damages by the families of victims of mesothelioma. We have also used the Compensation Act 2006, following a Legislative Consent Motion in the Scottish Parliament, to reverse for Scotland the House of Lords judgment in the Barker 2 case. Alongside this, and to help inform future policy, we have asked the Scottish Law Commission to examine in detail the current law relating to damages recoverable in respect of deaths caused by personal injury and damages recoverable by relatives of an injured person.
2.13 We are working with the UK Government on reforms to company law and floating charges, as they affect Scots law, so that the benefits to business in the Companies Act 2006 and the Bankruptcy and Diligence etc. (Scotland) Act 2007 will be available to businesses operating in Scotland.
2.14 We are also involved in a number of current European initiatives. These include projects to resolve conflicts between different legal systems in international civil cases, for example the Rome II project which seeks to establish rules, and greater legal certainty, on how cross-border disputes involving non-contractual obligations are resolved. It is important that we continue to contribute to these to ensure that the outcomes work effectively in relation to Scots law, and help people and businesses in Scotland take advantage of opportunities to travel, work and do business in the international dimension.
WHAT WE WILL DO
2.15 The majority of the recent reforms we have made in civil law have been based on reports and recommendations made by the Scottish Law Commission, and it is likely that this will also be the case in the future. The Commission's 7th programme of law reform, aimed at keeping the law in good repair, commenced on 1 January 2005 and covers both criminal and civil projects. On the civil side, it builds on the recent reforms to property law, looking now at land registration. It is undertaking a comprehensive review of trust law, and examining the law relating to judicial factors. New projects in the current programme include a review of the law of succession (inheritance); an examination of the law relating to assignation of and security over intangible assets, such as insurance policies, or book debts, which will have important implications for Scottish businesses; and a look at the law affecting unincorporated associations, such as sports clubs and residents' associations. It also includes some specific items which have been prompted by requests for advice from the Executive itself, such as the current reviews of the law on relatives' claims for damages (as mentioned above). It has published its reports on the law about interest on debt and damages, leasehold tenure and of the law of limitation of actions as it affects personal injury cases.
2.16 The Executive itself will also be undertaking a variety of research and evaluation projects in areas of civil law, some of which may indicate areas which need further review and reform. Planned work includes monitoring and evaluation of recent legislation, such as the changes introduced by the Family Law (Scotland) Act 2006.
2.17 Priorities for further civil law reform will be informed by the reports the Commission makes, by the Executive's own research, and by its assessment of what changes would bring about the most benefit to the people of Scotland. We are completing the legislative programme for the remainder of the current session of the Scottish Parliament, and the decision on priorities following the election is of course one for the incoming Administration. Some of the items mentioned above are, however, likely to result in future consultation and legislative proposals. It is vital in developing our future law reform agenda that we attend to the problems that people experience in their daily lives; and we will work hard, in concert with the Parliament, to secure early solutions to these.
Some projects of the Scottish Law Commission in their current programme
of work
- Leasehold tenure - the Commission published its report on 21 December 2006 on updating the law on long leases taking account of feudal reform. That represents the last piece of the jigsaw in abolishing the feudal system of land tenure in Scotland.
- Succession - the Commission is taking a comprehensive look at the law on who inherits someone's property when they die, to bring it up to date with current social attitudes and new family structures.
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