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CURRENT
CODIFICATION PROJECTS IN SCOTLAND
Professor Eric
Clive FRSE, CBE
Edinburgh University
15 May 2000
Immediate background
I was invited to attend the meeting of the Society’s Law Reform Committee on 4 May 2000 for the item on codification. At that meeting it was agreed that I should submit a short paper on current codification projects for consideration by the Society. I was grateful for the opportunity to attend the committee meeting and I am grateful for this opportunity to submit a paper.
Both the projects mentioned below are intended to furnish the legal community in Scotland and those interested in future legislation with texts which could be used for further discussion and refinement and, eventually, after suitable amendments, with the basis for potential Bills for the Scottish Parliament.
The
criminal code project
This project has been under way for some years. A draft exists and publication is planned for early 2001. The work has been undertaken on a voluntary and unofficial basis by a small group consisting of Professor McCall Smith (Edinburgh), Professor Gane (Aberdeen), Professor Ferguson (Dundee) and the author of this paper. Fraser McCallum, formerly a legal researcher at Aberdeen University, helped in the earlier stages. The idea is to codify, with some clarifications and changes where these seem to be necessary to remove anomalies and defects, those parts of the criminal law which at present turn on the common law and also those statutory offences which are within the competence of the Scottish Parliament and which are of general interest to citizens or visitors going about their normal lives. Specialised or regulatory offences of interest only to those carrying on some special activity are not included. Road traffic offences and drugs offences are not included.
The civil code project
The project is for the preparation of a draft civil code, probably in instalments or stages. The word “civil” has to be used slightly loosely, for reasons mentioned later, and the word “code” is not crucial. Some other term for a thorough statutory reorganisation of the predominantly civil laws of Scotland could be used. The term “civil code” is just a convenient label for the time being.
The project is an unofficial project based in the University of Edinburgh but intended to be open to all with an interest. The Scottish Law Commission has expressed support for the project but is unable to commit resources to it at the present time.
The Dean of the Faculty of Law at Edinburgh and I wrote to the Minister for Justice to see if he would be interested in supporting the project. In a response dated 23 February 2000 the Minister stressed the need for the Scottish Law Commission to be involved in some way, if the project was to command credibility, and invited me to prepare a “scoping paper” and an illustrative draft of a general part and a family law part. I am working on the scoping paper and illustrative drafts. The Scottish Law Commission has agreed to be represented by an observer at meetings of any steering group and to be on the mailing list for drafts as the work proceeds. For the rest, the project is at an early stage. No firm decisions have yet been taken on organisation or content.
Meaning of “codification” in present context
I am not using codification in a narrow sense, as opposed to consolidation. By codification I mean here a more or less comprehensive, structured, legislative statement or restatement of the law in a particular area, whatever the nature of the existing law and whether or not it is changed in the process. I am assuming, however, that the main objective is not substantive reform but rather a reorganising, with tidying up, clarification and limited improvements where necessary, of the existing law. Essentially, I am talking in this paper about a legislative reorganisation of the general laws which potentially affect all people subject to the law of Scotland.
The main argument for codification
The main argument for codification is that an organised, well structured, accessible set of laws is better for all who have to use the law than a disorganised, badly structured, comparatively inaccessible set of laws.
The main argument against codification
The main argument against codification is that a code would take away the flexibility presently enjoyed by the courts in common law areas. However, much depends on how the relevant parts are drafted. A code can provide as much flexibility as the policy makers want, and that might vary with the subject matter. The experience of countries which have had civil codes for a long time suggests that in any event the courts do in fact retain a great deal of scope to develop the law, whatever the code says.
Role of Scottish Parliament
The Scottish Parliament has wide powers to legislate on Scottish civil and criminal law and, it might be argued, a corresponding responsibility to use these powers wisely in the interests of the people of Scotland.
One civil code or a series of codes or Acts?
A key issue is whether any eventual legislation in the civil law area should take the form of one comprehensive civil code or a series of codes or Acts on specific subject areas. The advantage of one big code is that coherence can be better assured and more visible. MSP’s would not have to be told that certain matters which appear relevant to the Act under consideration will be dealt with in a later Act. Difficulties of this nature have already been encountered in the debates on abolition of the feudal system.
My own preliminary view, however, is that it would simply be impracticable to enact a comprehensive civil code all at once.
There are also positive advantages in proceeding in stages, provided that there is from the beginning a published general scheme and a commitment to consistency of terminology and approach. An earlier start could be made. Acts could be given priority according to the importance or practicability of codifying the law in a particular area. Difficult areas (e.g. delict?) could be left until later when experience had been gained, although discussion and preparation of drafts could begin immediately. More thorough consideration could be given to a Bill on a limited topic.
Areas of
mixed private and public law
Much modern law is a mixture of traditional private law rules and public law elements. A recent example is the Adults with Incapacity (Scotland) Act. The Children (Scotland) Act 1995 was also, quite deliberately, a mixture of private and public law. It would, in my view, make no sense to try to unpick the private and public law elements in such areas of the law. It seems better to accept that the nature of law has changed and that a civil code need not be confined exclusively to private law. Of course, most public law would still be excluded. The proposed civil code would deal only with areas which are predominantly private law. Much public law would also be excluded by the limitations on the competence of the Scottish Parliament. For example, the public law on Child Support could not, because of the limited competence of the Scottish Parliament, be included in a Scottish civil code, even if it were considered appropriate for inclusion on its merits. Lines will have to be drawn, but the important point is that they need not be drawn rigidly on the basis of the traditional public law/private law divide. Within areas of the law which are predominantly of a private law nature a more useful division might be between those matters which must be covered in primary legislation and those matters of procedure or detail which can appropriately be left to subordinate legislation.
Some modern Acts of a predominantly private law nature contain incidental criminal offences. An example is the Marriage (Scotland) Act 1977 which contains special offences for celebrating marriages when not qualified to do so and so on. It seems to me that users of the law would find it more convenient if these offences remained in their marriage law context and were not decanted into a criminal code.
A possible scheme
A possible way of organising the predominantly private law of Scotland (leaving open the possibility of including incidental public law elements, including incidental criminal offences, where appropriate) by more or less comprehensive, structured, legislation might be as follows. The items appear in the order in which they might appear in any eventual general code, not in the order of legislative priority or likely legislative attention.
Scheme for a
series of Acts of the Scottish Parliament
to reorganise Scottish private law in a systematic way
Civil Law (General Rules and Concepts) (Scotland) Act
I would be happy to discuss the possible contents of each of those parts. They could, of course, be modified or supplemented. The law of diligence could, for example, form another heading.
At the end of the process there would be the option of using the consolidation procedure to produce a comprehensive code or simply leaving the parts as separate Acts. There are arguments for each course. A comprehensive code could be seen as a symbol of national identity and as a fine and lasting achievement of the Scottish Parliament. Separate Acts might be easier to handle and update and could, in any event, be grouped together and published in one volume if so desired. No immediate decision need be taken.
Method of working
I would be grateful for views and suggestions. The most obvious basic working structure would seem to be to have a co-ordinating committee or steering group and small working groups of three or four persons for the drafting of different parts. It will be important to ensure that the project is inclusive, open and transparent and that every opportunity is provided for comment and debate as the work proceeds. The www and email open up new possibilities for distributing successive drafts and eliciting comments.
Conclusion
This seems an appropriate time to address the questions of whether and how the powers of the Scottish Parliament might be used to reorganise, and make more coherent and accessible, the general laws of Scotland.
It would add greatly to the value of my “scoping paper” for the Minister for Justice if I could give some indication of the views of the Society on the issues mentioned above and on any other issues which the Society might regard as relevant.