Act of Sederunt
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An Act of Sederunt (
Following Scottish devolution and the establishment of the Scottish Parliament, Acts of Sederunt are made as Scottish statutory instruments. Previously, Acts were made as United Kingdom statutory instruments, and before that were a separate class of legislation.[6][7]: [s. 27]
History
College of Justice Act 1532
The Court of Session—more accurately the
College of Justice Act 1540
Act of Sederunt 1540 | |
---|---|
Act of Parliament | |
Citation | 1540 c. 93 |
Although established in 1532, it was not until the passing of the
Courts Act 1672
The
Following a 19th-century reforming of the High Court of Justiciary, all Lords of Session were
Administration of Justice (Scotland) Act 1933
The powers of the Court of Session to make Acts of Sederunt were partially consolidated by the
Sheriff Courts (Scotland) Act 1971
The Sheriff Courts (Scotland) Act 1971 enabled the Court of Session to regulate the sheriff courts and Sheriff Appeal Court when they heard civil matters. The Act also dissolved the Sheriff Court Rules Council created by the Administration of Justice (Scotland) Act 1933, and created a new Sheriff Court Rules Council to continually review sheriff court procedure and submit to the Court of Session draft Acts of Sederunt for regulating sheriff courts.[16]: [ss. 33–34]
Court of Session Act 1988
The
Scottish Civil Justice Council and Criminal Legal Assistance Act 2013
The Court of Session Rules Council and Sheriff Court Rules Council were dissolved by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, which established the Scottish Civil Justice Council as their replacement. Originally, the Council's only function in relation to Acts of Sederunt was to prepare draft civil procedure rules for the Court of Session and sheriff courts, but this was expanded by the Courts Reform (Scotland) Act 2014 to include preparing draft procedural rules for the Sheriff Appeal Court and draft fees rules, and by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 to include draft inquiry procedure rules.[5]: [s. 2] [4]: [Sch. 5 paras. 18, 31] [18]: [Sch. 1 para. 1]
Courts Reform (Scotland) Act 2014
The majority of the Court of Session's current power to regulate is derived from the Courts Reform (Scotland) Act 2014, which consolidated many of the existing powers and, in conjunction with the Tribunals (Scotland) Act 2014, extended the power of the Court of Session to enable the Court to make rules for tribunals.[19]: [s. 68] [4]
Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016
The Court of Session's power to create Acts of Sederunt was extended by the
Powers
As with other secondary legislation, an Act of Sederunt can only make law within the scope set out by an
A non-exhaustive summary of these powers is provided below. In exercising these powers, the Court of Session can amend or repeal any enactment, including primary legislation, if it relates to matters an Act of Sederunt may cover.[4]: [s. 103(3)]
- Regulation of times and conditions of transmitting records to the Court of Session and Sheriff Appeal Court.[20]: [s. 1–1A]
- Setting of fees for inspection and copying of records held by the Keeper of the Records of Scotland.[20]: [s. 10]
- Regulation of procedure for tribunals considering fitness for the offices of Lord President, Lord Justice Clerk, judge of the Court of Session, Chairman of the summary sheriff.[4]: [s. 23]
- Regulation of consideration by a single judge of appeals to the Inner House.[17]: [s. 31A]
- Making of rules for admission into the Faculty of Advocates.[23]: [s. 121]
- Regulation of determination of the value of orders for payment of money or orders on property rights.[4]: [s. 39]
- Regulation of simple procedure claims, including calculation of value of claims.[4]: [s. 72]
- Regulation of representation of non-natural legal persons by laypersons.[4]: [s. 98]
- General regulation of procedure in practice in the Court of Session, sheriff courts, Sheriff Appeal Court.[4]: [ss. 103–104]
- Setting of fees for the Court of Session, sheriff courts, and Sheriff Appeal Court.[4]: [ss. 105–106]
- Making of rules for the First-tier and Upper Tribunal for Scotland.[19]: [s. 68]
- Regulation of procedure for tribunals considering fitness for membership of the First-tier or Upper Tribunals.[19]: [Sch. 8 para. 14]
- Regulation of procedure for inquiries into fatal accidents and sudden deaths.[18]: [s. 36]
Note, however, that the power to regulate admission into the Faculty of Advocates is effectively delegated from the Court of Session to the Faculty, as the Court legislated to require that those seeking admission meet criteria set out by the Faculty.[24]
Court procedure
Rules of the Court of Session
Rules for the functioning of the Court of Session are developed by the Scottish Civil Justice Council, which was established by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013. The Council prepares draft rules of procedure for the civil courts and advises the Lord President on the development of the civil justice system in Scotland. The SCJC will consider changes to practice and procedure in response to policy initiatives, by specific request, or of its own accord.[5][25]
Membership of the Council is provided for in the 2013 Act. The Council is chaired by the Lord President, Lord Carloway, and membership includes:
- The Chief Executive of the Scottish Courts and Tribunals Service (Eric McQueen)
- The Chief Executive of the Scottish Legal Aid Board (Lindsay Montgomery CBE)
- One member of Scottish Government staff (Jan Marshall)
- At least four members of the judiciary, including at least one judge of the Court of Session and at least one sheriff principal or sheriff (Rt. Hon. Lord Menzies, Rt. Hon Lord Tyre, Sheriff Principal Mhairi M. Stephen and Sheriff Ian R Abercrombie QC)
- At least two practicing advocates (James Wolffe QC and Sarah Wolffe QC)
- At least two practicing solicitors (Eric Baijal and Duncan Murray)
- At least two consumer representative members (Ian Maxwell, Families Need Fathers and Lauren Wood, Citizens Advice Scotland)
- Up to six LP members (Employment Judge Joseph d'Inverno and Professor Fances Wasoff, University of Edinburgh).
Sheriff court rules
Rules for the functioning of civil procedure in the sheriff courts are also prepared by the Scottish Civil Justice Council.
Enacting formulae
Acts of Sederunt, like other legislation in the United Kingdom, are introduced by
The Lords of Council and Session, under and by virtue of the powers conferred on them by section 5 of the Court of Session Act 1988 and of all other powers enabling them in that behalf, do hereby enact and declare:
Those for the regulation of procedure in the sheriff courts begin:
The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971 and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:[16]: [s. 32] [27] [28]
Those for setting the fees of messengers-at-arms are enacted:
The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 6 of the Execution of Diligence (Scotland) Act 1926, section 5 of the Court of Session Act 1988 and of all other powers enabling them in that behalf, with the concurrence of the Lord Lyon King of Arms do hereby enact and declare:[17]: [s. 5]
Those for setting the fees of sheriff officers are enacted:
The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 40 of the Sheriff Courts (Scotland) Act 1907, section 6 of the Execution of Diligence (Scotland) Act 1926 and of all other powers enabling them in that behalf, do hereby enact and declare:[29]
References
- ^ "Dictionary of the Scots Language :: SND :: Sederunt n., adj". Scottish National Dictionary. Scottish Language Dictionary. 2004. Retrieved 2 April 2017.
- ^ RobertBurnsVideos (1 February 2010), Robert Burns - Act Sederunt of the Session (read by Paul Young), retrieved 30 March 2018
- ^ Subordinate Legislation Committee - Scottish Parliament: 18th December 2012, retrieved 30 March 2018
- ^ a b c d e f g h i j Scottish Parliament. Courts Reform (Scotland) Act 2014 as amended (see also enacted form), from legislation.gov.uk.
- ^ a b c Scottish Parliament. Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 as amended (see also enacted form), from legislation.gov.uk.
- ^ "The Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999", legislation.gov.uk, The National Archives, SI 1999/1096
- ^ Scottish Parliament. Interpretation and Legislative Reform (Scotland) Act 2010 as amended (see also enacted form), from legislation.gov.uk.
- ^ College of Justice Act 1532. Records of the Parliaments of Scotland. 1532.
- ^ John Erskine; George Mackenzie; James Ivory (1824), "An institute of the law of Scotland: in four books : in the order of Sir George Mackenzie's Institutions of that law", 19th-century Legal Treatises, no. 4217–4230, Bell & Bradfute, p. 16, retrieved 2 May 2017,
for the court of session have a delegated power from the parliament, to make such statutes as they think proper for the ordering of process and the expediting of justice, 1540, 'C.93'
- ^ College of Justice Act 1540. Records of the Parliaments of Scotland. 1540.
- ^ Courts Act 1672. Records of the Parliaments of Scotland. 1672.
- ^ Bell, William; Ross, George (1861). A Dictionary and Digest of the Law of Scotland, with short explanations of the most ordinary English law terms. Bell & Bradfute. pp. 122.
Books of Adjournal. The records of the Court of Justiciary. ... The power of the Court of Justiciary to pass acts of adjournal regulating the procedure of the court is conferred by 1672, c. 16.
- ^ "Criminal Procedure (Scotland) Act 1887", legislation.gov.uk, The National Archives, 1887 c. 35
- ^ "Criminal Procedure (Scotland) Act 1995", legislation.gov.uk, The National Archives, 1995 c. 45
- ^ "Administration of Justice (Scotland) Act 1933", legislation.gov.uk, The National Archives, 1933 c. 41
- ^ a b "Sheriff Courts (Scotland) Act 1971", legislation.gov.uk, The National Archives, 1971 c. 58
- ^ a b c d "Court of Session Act 1988", legislation.gov.uk, The National Archives, 1988 c. 36
- ^ a b c Scottish Parliament. Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 as amended (see also enacted form), from legislation.gov.uk.
- ^ a b c Scottish Parliament. Tribunals (Scotland) Act 2014 as amended (see also enacted form), from legislation.gov.uk.
- ^ a b "Public Records (Scotland) Act 1937", legislation.gov.uk, The National Archives, 1937 c. 35
- ^ Scottish Parliament. Judiciary and Courts (Scotland) Act 2008 as amended (see also enacted form), from legislation.gov.uk.
- ^ Scottish Parliament. Criminal Proceedings etc. (Reform) (Scotland) Act 2007 as amended (see also enacted form), from legislation.gov.uk.
- ^ Scottish Parliament. Legal Services (Scotland) Act 2010 as amended (see also enacted form), from legislation.gov.uk.
- ^ Scottish Parliament. Act of Sederunt (Regulation of Advocates) 2011 as made, from legislation.gov.uk.
- ^ "Council". www.scottishciviljusticecouncil.gov.uk. Retrieved 5 May 2017.
- ^ Statutory Instrument 1997 No. 1720 Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (No. 1720 (S.129)) (Coming into force 1997-08-01)
- ^ "Sheriff Courts (Scotland) Act 1971: Section 34", legislation.gov.uk, The National Archives, 1971 c. 58 (s. 34)
- ^ Scottish Parliament. Act of Sederunt (Sheriff Court Caveat Rules) 2006 as made, from legislation.gov.uk.
- ^ Scottish Parliament. Act of Sederunt (Fees of Messengers-at-Arms) 2004 as made, from legislation.gov.uk.