This was a presentation by
Professor Hector MacQueen of the Scottish Law Commission. Main gist below as
follows.
He started with a clip from Monty
Python and the Holy Grail showing the fate of the Black Knight against the King
of the Britons, limb after limb is lost but the Black Knight remains full of
fight sure he can win. Are they mere scratches or terminal condition?
Session looked at challenges for
the future of the Scottish legal system.
Scratches
Process of europeanisation (less
autonomy, loss of some individual character).
Human rights (has had large
impact on things like criminal procedure).
Social welfare / taxation /
public law (fairly recent types of law, what happens to them if there’s independence)
Commercial and consumer law
(area’s of law currently reserved to the UK).
So, some loss of autonomy
Flesh Wounds
Indifference of population at
large to lawyers and legal system.
Impatience (sometimes purely
Scottish points may be seen to be a drag factor).
Ignorance few people know about
Scots law.
Inaccessibility (people not sure
where to find it or what a contract subject to Scots law means).
Impotence (little clout to carry
things through or resources for).
Internationalism (fear of being
accused of parochialism).
There are issues in how to
reconcile internationalism and parochialism.
Other Flesh Wounds
Is our law in demand? (lots of
contracts in Scotland are made under English law).
Is our law in demand (who wants
Scots law?).
Choices of English law and
jurisdiction.
Are Scottish courts
proportionately under used? (research shows under used compared to English
courts by around 60%, some local Scots courts are being closed as part of
rationalisation).
The business difficulties of law
firms (big mergers, closures in dramatic circumstances, doing subsidiary work
for other jurisdictions, outsourcing).
Flesh Wounds
The effects on the laws
development “For a legal system to succeed it needs to develop a critical mass.
It needs to be sufficiently popular and important for lawyers and judges to study it. It needs to develop
case law to guide its interpretation and put flesh on the bare bones of text.”
Supreme Court - criticisms from the Scots judges in Supreme
Court on Scots legal system. Stress absence of case management and sending
appeals not appropriate for Supreme Court to consider, criticising how Court of
Session goes about giving its judgments.
Arguments for health…
Invincibility (1)
I’m still standing after all
these years (Scots law still going after a very long time).
Megrahi’s compassionate release
(power of Scots law, it can be independent).
The mixed legal system (a unique
tradition).
The re-in-STATE-d nation
(increased devolution at minimum seems certain for near future, should give
impetus to legal system, have to become more ambitious).
Invincibility (2)
Scots law has
Legislature
Courts
Associated institutions (e.g.
land registers)
Profession
Education
Lots Scots law subjects
So perhaps all in all, we should
consider it a draw for now
But what of the search for the Holy Grail?
The Holy Grail (should be able to
know what the law is).
Codification or at least reform
of law (need to develop law further, don’t have enough Scots caselaw, on many
questions there’s none or no depth of).
Reform of the courts to attract
and retain business, not drive it away, need to face outwards (do specialised
Tribunals stall the development of the law by making it hard to locate and
find?, if Sheriff Court becomes a general Court of First Instance for all
matters to a certain monetary limit what training issues does that lead to).
Knowledge of the economic,
political and social facts of our civilisation.
Ponder the common law of the
world, not just England (e.g. European jurisdictions, need for wide material
resources to support).
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