Scottish Group: 10th Anniversary

August 31, 1998

The Scottish Group celebrated the 10th Anniversary of its foundation in conjunction with its Annual Lecture on 18 June at the John McIntyre Centre, Pollock Halls, Edinburgh, with Supper at Arthur Lodge thereafter.

In the midst of the plague of football mania, which seemed to be keeping the nation glued to its TV sets, the Group still managed to field a moderately respectable home team to welcome our speaker, Professor Neil MacCormick, Regius Professor of Public Law at Edinburgh University.

The title of this year’s lecture was ‘Scots Law and the Scottish Legal System in the Context of Devolution’ with special consideration of IT implications as a subtext. The speaker approached the context by analysing sections of the current Scotland Bill which sets out the powers available to the new Parliament. Giving it top marks for clarity with ‘there shall be a Scottish Parliament’ (cl 1(1)) and ‘the Parliament may make laws.’ (cl 27(1)), the speaker concluded that the Bill proposed a robust devolutionary scheme, with powers properly reserved for the UK government as a whole and others appropriately devolved in accordance with the Principle of Subsidiarity. All Scottish Acts to be effective must be certified as intra vires – provisions likely to expand the Scottish aspects of judicial review? There is a system of checks and balances which correlates to the exercise of devolved powers. Some of the excluded areas of legislation, at least in the starkness of tabular form, caught the audience unawares – Lord Lieutenant ships, Intellectual Property, Time and Space to name but a few. But overall the ‘bits’ that are distinctively Scottish are now to be dealt with here.

Turning to the IT impacts, and eschewing the temptations of topics such as deliberative polling, citizens panels, a Scottish ‘McHansard’, telematics, electronic voting, etc, the speaker singled out the unique and exciting opportunity offered by the fact that the new Parliament will start with a blank Statute Book. Our present UK concept of the Statute Book is shaped by Gutenberg technology – a serial depository. As a consequence, it is notably diachronic in character – the law at any moment in time depending on the output of a complex historical process. But law also has at every moment in time a synchronous or momentary existence. This momentary system matters for law in practice. It answers questions such as ‘What are my rights now? What are my liabilities now?’ But to answer these satisfactorily, we also need recourse to the diachronic record.

The speaker asked if the new technology and the blank page could not combine to allow a whole new approach. Instead of consisting of chapters accumulated chronologically, could it not from the beginning be codified thematically (Property, Persons, etc) The structure of the new Statute Book could be envisaged in advance with each new chapter of legislation taking the form of the insertion of new material or the re-writing of the chapter, resulting in a presentation of the current momentary system of the law for any given time. The diachronic character of law with the requirement to know what a person’s rights were at the time of the occurrence of constitutive acts or events could be met by imaginative use of present technology. The speaker concluded with this challenging question: ‘if there is no problem from the point of view of technology, is there a problem from the legal point of view ?’

Chaired by Alan Grosset of Alex Morison & Co WS, who chaired the first meeting ten years ago, the meeting was attended ten years on by several members who were also present at the original meeting. We were especially delighted to be joined for the occasion by Neil Cameron, Joint Chairman of the Society for Computers & Law. Among the guests we welcomed Philip Dry of Biggart Baillie, recently installed as President of the Law Society of Scotland and an ex-officio Vice President of SCL, Professor Hans Baada, Professor of Comparative Law at the University of Texas, and Mrs David Kidd temporarily representing her husband, first Chairman of the Scottish Group, until he managed to join the celebrations just before the final whistle.