Act of Sederunt (literally Act of Session; with sederunt a term meaning a session or meeting of a court.) in Scots law, is an ordinance for regulating the forms of judicial procedure (hearings and trials) before the Court of Session (the supreme civil court of Scotland), sheriff courts in civil session, and for setting fees for messengers-at-arms and sheriff officers enacted by the Lords of Session under authority of a power originally conferred on the founding of the Court of Session in 1532 and granted exclusively to them by an act of the Parliament of Scotland in 1540, c. 93. The power to pass Acts of Sederunt was reconfirmed by the Parliament of the United Kingdom in the Court of Session Act 1988. Further powers have been added to regulate the civil procedures of the sheriff courts of Scotland by the Sheriff Courts (Scotland) Act 1971, along with powers to set fees for messengers-at-arms and sheriff officers who are responsible for serving writs, decrees and diligences in Scotland. The College of Justice regulates procedure for criminal trials through Acts of Adjournal. A quorum of nine judges is required to pass an act of Sederunt.
Contents
- History
- Purposes of Acts of Sederunt
- Rules of the Court of Session
- Sheriff court rules
- Enacting formulae
- References
Acts of Sederunt take effect as a form of secondary legislation as a Scottish Statutory Instrument but are only laid before the Scottish Parliament where required by statute. Whereas in England and Wales the Civil Procedure Rules are drawn up by the Civil Justice Council and are laid before Parliament as a Statutory Instrument subject to negative procedure.
History
Since its founding the Court of Session was given considerable scope to regulate its own affairs through Acts of Sederunt. The court shared this power with the Parliament of Scotland until 1540 when it was given the exclusive power to pass Acts of Sederunt by c.93 of that year.
The powers of Acts of Sederunt extended into primary legislation with the Lords of Session passing Acts which created judicial precedent without any case being subject to adjudication. This was found questionable in a letter address to Robert Peel; who was Home Secretary in 1823. In the 19th century there were those who felt the power of the Court to pass Acts of Sederunt without Parliamentary approval was ultra vires (beyond the powers) of the Court. Such acts had also regulated what may happen in the High Court of Justiciary, thereby extending into regulating criminal law. Therefore, Robert Wallace and a meeting of the Country of Renfrew resolved that the power to make Acts of Sederunt should belong to Parliament alone, as they were legislative acts. Though the Sheriff Courts (Scotland) Act 1971 enabled the Court of Session to regulate the civil procedures of the sheriff courts of Scotland, the court had previously assumed the power to regulate procedures for sheriffs.
The Faculty of Advocates, the body of counsel with rights of audience in the Court of Session and High Court of Justiciary, is constituted as part of the College of Justice with its power to admit new advocates (called "intrants") devolved to it by the Court of Session by Acts of Sederunt. The court having regulated who may serve as counsel from its founding through in acts of 1532 and 1590. The same act also made liable any procurator to pay compensation who was "ignorant and unprepared". Solicitors had their rights of audience in the lower courts regulated by Acts of Sederunt, and before the founding of the Law Society of Scotland, older societies such as the Writers to the Signet, Society of Solicitors in the Supreme Courts of Scotland and Royal Faculty of Procurators in Glasgow existed to support their members. Recently a professional or other body can be granted rights of audience before a specific court for a specific purpose due to Sections 25 to 29 of Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) the Court of Session gives effect to any scheme already approved by the Lord President. Such power was used to recognise the right of audience of members of the Association of Commercial Attorneys. The manner in which counsel is able to present oral argument is regulated by Act of Sederunt, with an early example prescribing syllogistic as opposed to rhetorical pleading.
Section 4 of the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 removed the power of the Court of Session to regulate fees payable to the courts and legal agents covered by the Legal Aid system, with the power to make orders transferred to the Secretary of State.
Purposes of Acts of Sederunt
Acts of Sederunt are used primarily to regulate civil procedure in the Court of Session and sheriff courts in Scotland. The Court of Session 1988 has an exhaustive list of how the court may regulate procedure and allocate business via Acts of Sederunt. The fees for messengers-at-arms (court officers), solicitors practising before the court, timings of certain appeals, the form of summons, writs, petitions, etc. are examples of procedures regulated by these acts. They also determine certain business which should be laid on the respective rolls and before the Inner House or Outer House, and laying certain powers of trustees.
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.
Membership of the Council is provided for in the 2013 Act. The Council is chaired by the Lord President, Lord Gill, and membership includes:
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 enacting formulae. Those for the regulation of procedure in the Court of Session begin:
Those for the regulation of procedure in the sheriff courts begin:
Those for setting the fees of messengers-at-arms are enacted:
Those for setting the fees of sheriff officers are enacted: