Principles and Politics in Law Reform: Sexual Offences in Scots Law

Abstract

In 2007 the Scottish Law Commission completed a project for the reform of Scots law on rape and other sexual offences. The bulk, but by no means all, of the Commission's recommendations were enacted in the Sexual Offences (Scotland) Act 2009, which came into force in November 2010. Although this paper will have much to say on the new law on sexual offences, its main focus is on the process of law reform which led to this change. In particular, the paper will address two general themes about law reform, in the sense of the systematic method of law reform adopted by bodies like Law Commissions. The first is that most good law reform exercise must identify the underlying principles which inform and structure the ultimate recommendations. The second relates to the 'politics' of law reform. For this purpose 'politics' has two contrasting meanings. One is the external political context to the project itself; what political factors (if any) were involved in the project being initiated, in moulding the proposals for reform, in deciding whether or not to implement the recommendations, and determining the final form which the law would take in statute. In the case of the sexual offences project, politics in this sense was involved at all these stages, and it is impossible to understand how we now have the law in the form it is without being aware of these political factors. Many law reformers are wary of these political influences. Law Commissions spend considerable time and hard work in carrying any project through to completion. Yet, often enough, the strength and purity of their proposals for reform are often watered down in the political process of the passage of an implementing bill in the Scottish or UK Parliament. Worse still, the Government, whether in Holyrood or Westminster, might decide against legislative implementation of the recommendations of an entire project, often but not always, because it anticipates a hostile political reaction to any implementing bill.