The Scottish Law Commission has recently concluded a Memorandum of Understanding with the Heads of the Scottish Law Schools regarding co-operation between the Commission and academics in Scotland. This aims to encourage greater support for the Commission from academia and to provide a pathway to impact for Scottish academics and allow them to develop a deeper understanding of the work of the Commission and of the process of law reform in general. It is particularly apposite in light of the current consultation on its Tenth Programme of Law Reform which closes on 31 July. One of the first outcomes of this Memorandum was John MacLeod’s placement from July to December in the past year. John was placed within the property law team, who are currently working towards a Commission Report on assignation and security over moveable property. In the near future, the team will move on to work on heritable security (i.e. security over land).
Redesigning the rules on enforcement will be a central part of this project and John’s primary brief was to write an options paper, outlining potential approaches in light of experience with the current system and the approach of comparator systems.
In pursuance of this, he met with solicitors working under the current regime, gaining a sense of the live issues which they face. He also travelled to the Max Planck Institute for Comparative and International Private Law and the Association of German Pfandbrief Banks’ Expert Round Table on Security over Immoveable Property. As well as giving access to materials which are not available in Scotland, John was thus able to present the project to lawyers from a wide range of jurisdictions, raising the project’s profile and gaining insight into certain practical subtleties which are not necessarily evident from consultation of written sources alone.
Alongside his work on heritable securities, John was able to participate in the team’s work refining the draft legislation on assignation and security over moveable property. John said, “I found consideration of drafts in embryo invaluable in developing my understanding of the challenges faced by drafters. In particular, it showed how important clarity about the policy being pursued and the conceptual framework being used to deliver that policy are to preparation of legislation which is clear, accessible and workable. I spend a good deal of my time criticising legislation so it was perhaps a useful corrective to suffer in its production.
“I believe that this has improved my general understanding but I also hope that it means that my presentation of options to the Commission are framed in a way which coheres with the approach taken to moveable property and to land registration. Clear conceptual links between these areas of Scots property law make a big difference in how easy it is to get your head round each element which will be important not only for practitioners but for future generations of students. I hope I was able to make a positive contribution to the project on moveable property too.
“The welcome and support I received at the Commission was warm and very encouraging. It is a great opportunity to interact directly with policy makers and to discuss legal questions with people with a wide range of experience and interests in the issues. The Commission clearly values the perspective which I have been able to bring and I would very much encourage others to seek out opportunities to work closely with the Commission on future projects.
“My experience with the Commission certainly convinced me of the central role that it has in ensuring that Scots law meets the needs of the people of Scotland now and in the future.”
Submissions to the consultation on the Tenth Programme of Law Reform can be made here: https://www.scotlawcom.gov.uk/law-reform/consultations/tenth-programme-of-law-reform-consultation/tenth-programme-consultation-response-form/
Anyone who would like to discuss John’s experience of working with the Commission is welcome to contact him at firstname.lastname@example.org
John MacLeod is a Lecturer in Commercial Law at the University of Glasgow's School of Law.