Monday, June 24, 2013

BIALL 2013 Invincible or just a flesh wound? The Holy Grail of Scots law

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.


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
Associated institutions (e.g. land registers)
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).

No comments:

Post a Comment