Scottish Law Commission calls for 'stronger government buy-in' to its work

Scotland’s main law reform body has called for “stronger government buy-in” to its work, as it outlined a series of proposals to prevent recommendations being left “sitting on a shelf”.

The Scottish Law Commission has pointed to the need for a “re-examination” of its relationship with the Scottish Government amid concerns over delays in implementing some of the commission’s work.

Delivering a speech to the Scottish Public Law Group last night, chairman Lord Pentland said a “real and meaningful engagement” is needed between the two when initially considering which areas of law to review and during the course of work being carried out.

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"Essentially what I am suggesting is that now is a good opportunity perhaps to re-examine the relationship between the commission and the government with a view to getting a stronger government buy-in for our projects at the outset,” he told Holyrood.

Ministers do not need to adopt the commission’s recommendations, though where it intends to do so Pentland suggests they should have a draft bill prepared typically within six months.

If government does not intend to act on what the law reform body has set out then it should be required to explain its reasons to the Scottish Parliament with MSPs then able to call for a parliamentary debate. Overall the implementation rate of Scottish Law Commission reports stands at around two thirds.

“What can happen is that because our work takes some time, by the time we report political priorities have changed [while] the government may have changed in complexion,” Lord Pentland told Holyrood.

“What we’re hoping is to find a way of getting more concrete ministerial support at the outset and then also during the currency of a project working with government.”

The judge, a former Solicitor General for Scotland, stressed that he was not being critical of the Scottish Government nor wished to compromise the independence of the commission.

Positive steps, such as allowing a Holyrood committee to effectively fast-track uncontroversial law reform measures, have been taken, he said.  

However, he believes there is still a need to address a “distancing effect which can develop” that ultimately leads to delays amid a crowded legislative programme.  

He said: “We have to recognise that government has its political priorities and that there will be difficult decisions that need to be taken about any legislative programme.

“But we just want to try and find a way of ensuring that all of the work that we do – sometimes over a period of years – is fully taken advantage of and not wasted.”

As it stands, the Scottish Government agrees to provide a public response to commission reports within three months, though this does not extend to the introduction of legislation.

The three-month timescale is too short, added Lord Pentland, who believes moving to six months – albeit extending the commitment to include preparation of a draft bill if government intends to legislate – is “reasonable”.

“This scheme is only an outline scheme and other people may have better ideas and to some extent it is intended to stimulate debate and discussion about the issues,” he told Holyrood.

“What I am trying to get is a more meaningful engagement between the commission and the government when we take on a project and then a more immediate informed response when we report on a project so that, for example, projects don’t then sit on a shelf and have to be dusted down, maybe another round of consultation, more consideration, duplication and repetition of work, etc.”