Wednesday, 2 March 2011

The Scottish Law Commission on delay in bankruptcy, consolidation and Professor Walter Ross

The Scottish Law Commission's (pictured) recently published Annual Report for 2010 contains some interesting comments on bankruptcy and the progress of law reform. The report notes:



"Delay is also a feature of the Bankruptcy and Diligence etc. (Scotland) Act 2007; the relevant Commission Report was issued in 2001 but the legislation was not passed until 2007. This is in a field of law that had been regarded as seriously defective for many years; criticisms are found as far back as 1792, when Professor Ross's Lectures on Conveyancing were first published."

In relation to their forthcoming consolidation work they note in relation to bankruptcy (at page 25):

"Bankruptcy legislation
We are undertaking this project with a view to a consolidation Bill being introduced in the Scottish Parliament. The principal legislation on bankruptcy is the Bankruptcy (Scotland) Act 1985 but the Act has been heavily amended in recent years. The aim of the consolidation is to bring the provisions together into a rational and coherent form for the benefit of users. Work continued during 2010 on preparation of a draft consolidation Bill. We are being assisted by officials in the Accountant in Bankruptcy's Office who are supporting the project. We are also working closely with colleagues in the Scottish Government with policy responsibility for this area of law. The draft Bill has been adjusted to take account of the Home Owner and Debtor Protection (Scotland) Act 2010, which contains provisions relating to bankruptcy. Towards the end of 2010 the Accountant in Bankruptcy sent copies of the Bill to key stakeholders inviting comments on the draft. The aim is to complete work on the consolidation by the autumn of 2011."

The Professor Walter Ross (1738–1789) publication mentioned in this quote is: Ross, W. Lectures on the practice of the Law in Scotland. 2 vol. Edinburgh, 1792. As his ODNB biographer notes: "In 1783 and 1784 he gave a series of private lectures on the law of conveyancing in Scotland to apprentices of the Society of Writers to the Signet. These were well received...They were published posthumously in 1792 as Lectures on the history and practice of the law of Scotland relative to conveyancing and legal diligence. These lectures were the first attempt to state this branch of the law of Scotland in a coherent and comprehensible way, for Ross believed that ‘styles and forms could not be understood without some acquaintance with the ancient customs manners and history both civil and ecclesiastical’ (Walker, 273). In this, he paved the way for the work of Robert Bell. Later commentators have referred to Ross's Lectures as being of high authority and entitled to respect—not least because of the regular references to it in the court of session during the great property litigations of the nineteenth century." 

It seems as if Professor Ross' work still carries weight, receiving a citation by the Scottish Law Commission in 2011, some 219 years later. As soon as my copy of Professor Ross' work arrives I will let you know what he said about the bankruptcy jurisdiction. 


Picture Credit: http://farm3.static.flickr.com/2451/3565588801_82cd4c128a.jpg?v=0

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