Act of Sederunt
Encyclopedia
Act of Sederunt 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 Court
s in civil session, and for setting fees for Messengers-at-arms
and Sheriff officer
s 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 recently 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 Court
s of Scotland by the Sheriff Courts (Scotland) Act 1971, along with powers to set fees for Messengers-at-arms
and Sheriff officer
s who are responsible for serving writ
s, decree
s and diligence
s 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.
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.
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 Court
s of Scotland, the Court had previously assumed the power to regulate procedures for Sherriffs.
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.
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.
and reconfirmed by the Court of Session Act 1988. The Council consists of the Lord President of the Court of Session
(ex officio), two other Lords of Session appointed by the Lord President, five advocate
s appointed by the Faculty of Advocates
, and five solicitor
s appointed by the Council of the Law Society of Scotland
. They formulate rules and pass them to the Court as an Act of Sederunt for approval.
, three sheriff
s, one advocate, five solicitors, two (whole-time) sheriff clerks and two further members, all appointed by the Lord President and a further member appointed by the Scottish Ministers.
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 officer
s are enacted:
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
, is an ordinance
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
for regulating the forms of judicial procedure
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
(hearings
Hearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
and trials
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
) before the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
(the supreme
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
of Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
), Sheriff Court
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
s in civil session, and for setting fees for Messengers-at-arms
Messenger-at-arms
A messenger-at-arms is an officer of the Scottish Court of Session, responsible for serving documents and enforcing court orders throughout Scotland. Messengers-at-arms must have a commission as a sheriff officer although, unlike sheriff officers, the jurisdiction of a messenger-at-arms is not...
and Sheriff officer
Sheriff officer
A sheriff officer is an officer of the Scottish Sheriff Court, responsible for serving documents and enforcing court orders. The jurisdiction of a sheriff officer is limited to the area of their commission , unlike messengers-at-arms...
s enacted by the Lords of Session
Senator of the College of Justice
The Senators of the College of Justice are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of Senator: Lords of Session ; Lords Commissioner of Justiciary ; and the Chairman of the Scottish Land Court...
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
Parliament of Scotland
The Parliament of Scotland, officially the Estates of Parliament, was the legislature of the Kingdom of Scotland. The unicameral parliament of Scotland is first found on record during the early 13th century, with the first meeting for which a primary source survives at...
in 1540, c. 93. The power to pass Acts of Sederunt was recently reconfirmed by the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
in the Court of Session Act 1988. Further powers have been added to regulate the civil procedures of the Sheriff Court
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
s of Scotland by the Sheriff Courts (Scotland) Act 1971, along with powers to set fees for Messengers-at-arms
Messenger-at-arms
A messenger-at-arms is an officer of the Scottish Court of Session, responsible for serving documents and enforcing court orders throughout Scotland. Messengers-at-arms must have a commission as a sheriff officer although, unlike sheriff officers, the jurisdiction of a messenger-at-arms is not...
and Sheriff officer
Sheriff officer
A sheriff officer is an officer of the Scottish Sheriff Court, responsible for serving documents and enforcing court orders. The jurisdiction of a sheriff officer is limited to the area of their commission , unlike messengers-at-arms...
s who are responsible for serving writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s, decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
s and diligence
Diligence (Scots law)
-Definition:Diligence : a process; execution.The term has several usages in legal proceedings involving creditors and debtors:...
s in Scotland. The College of Justice
College of Justice
The College of Justice is a term used to describe the Supreme Courts of Scotland, and its associated bodies.The constituent bodies of the supreme courts of Scotland are the Court of Session, the High Court of Justiciary, and the Accountant of Court's Office...
regulates procedure for criminal trials through Acts of Adjournal. A quorum
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
of nine judges is required to pass an act of Sederunt.
Acts of Sederunt take effect as a form of secondary legislation
Delegated legislation
In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...
as a Scottish Statutory Instrument
Scottish Statutory Instrument
A Scottish Statutory Instrument is a form of secondary legislation in Scotland which is made under Scots law by Scottish Ministers and other Scottish authorities such as the Court of Session, through Acts of Sederunt, or the High Court of Justiciary, through Acts of Adjournal...
but are only laid before the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...
where required by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. Whereas in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
the Civil Procedure Rules
Civil Procedure Rules 1998
The Civil Procedure Rules are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales...
are drawn up by the Civil Justice Council
Civil Justice Council
The Civil Justice Council is a UK non-departmental public body that advises the Lord Chancellor on civil justice and civil procedure in England and Wales...
and are laid before Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
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 ScotlandParliament of Scotland
The Parliament of Scotland, officially the Estates of Parliament, was the legislature of the Kingdom of Scotland. The unicameral parliament of Scotland is first found on record during the early 13th century, with the first meeting for which a primary source survives at...
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
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
with the Lords of Session passing Acts which created judicial precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
without any case being subject to adjudication
Adjudication
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....
. This was found questionable in a letter address to Robert Peel
Robert Peel
Sir Robert Peel, 2nd Baronet was a British Conservative statesman who served as Prime Minister of the United Kingdom from 10 December 1834 to 8 April 1835, and again from 30 August 1841 to 29 June 1846...
; who was Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
in 1823. In the 19th century there were those who felt the power of the Court to pass Acts of Sederunt without Parliamentary approval
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
was ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
(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
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
. Therefore, Robert Wallace and a meeting of the Country of Renfrew
Renfrewshire
Renfrewshire is one of 32 council areas used for local government in Scotland. Located in the west central Lowlands, it is one of three council areas contained within the boundaries of the historic county of Renfrewshire, the others being Inverclyde to the west and East Renfrewshire to the east...
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 Court
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
s of Scotland, the Court had previously assumed the power to regulate procedures for Sherriffs.
The Faculty of Advocates
Faculty of Advocates
The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary...
, the body of counsel
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
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
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
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
Law Society of Scotland
The Law Society of Scotland is the professional governing body for Scottish solicitors.It promotes excellence among solicitors through representation, support and regulation of its members. It also promotes the interests of the public in relation to the profession...
, older societies such as the Writers to the Signet
Writers to the Signet
The Society of Writers to Her Majesty’s Signet is a private society of Scottish solicitors, dating back to 1594 and part of the College of Justice. Writers to the Signet originally had special privileges in relation to the drawing up of documents which required to be signeted, but these have since...
, Society of Solicitors in the Supreme Courts of Scotland
Society of Solicitors in the Supreme Courts of Scotland
The Society of Solicitors in the Supreme Courts of Scotland is a professional association of solicitors in Scotland representing those lawyers who practice in and around the College of Justice...
and Royal Faculty of Procurators in Glasgow
Royal Faculty of Procurators in Glasgow
The Royal Faculty of Procurators in Glasgow is a professional body of legal practitioners based in Glasgow and providing services to lawyers in the city and the surrounding area...
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
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
is able to present oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
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 procedureCivil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
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
Messenger-at-arms
A messenger-at-arms is an officer of the Scottish Court of Session, responsible for serving documents and enforcing court orders throughout Scotland. Messengers-at-arms must have a commission as a sheriff officer although, unlike sheriff officers, the jurisdiction of a messenger-at-arms is not...
(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
Inner House
The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance...
or Outer House
Outer House
The Outer House is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted to it by the other more senior part, the Inner House...
, and laying certain powers of trustees.
Rules of the Court of Session
Rules for the functioning of the Court of Session are generally decided upon by the Court of Session Rules Council, which was instituted by the Administration of Justice (Scotland) Act 1933Administration of Justice (Scotland) Act 1933
The Administration of Justice Act 1933 is an act of the Parliament at Westminster legislating for Scotland which introduced changes in Scottish legal procedure "following the recommendations of a Royal Commission which reported in 1927"....
and reconfirmed by the Court of Session Act 1988. The Council consists of the Lord President of the Court of Session
Lord President of the Court of Session
The Lord President of the Court of Session is head of the judiciary in Scotland, and presiding judge of the College of Justice and Court of Session, as well as being Lord Justice General of Scotland and head of the High Court of Justiciary, the offices having been combined in 1836...
(ex officio), two other Lords of Session appointed by the Lord President, five advocate
Advocate
An advocate is a term for a professional lawyer used in several different legal systems. These include Scotland, South Africa, India, Scandinavian jurisdictions, Israel, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man...
s appointed by the Faculty of Advocates
Faculty of Advocates
The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary...
, and five solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s appointed by the Council of the Law Society of Scotland
Law Society of Scotland
The Law Society of Scotland is the professional governing body for Scottish solicitors.It promotes excellence among solicitors through representation, support and regulation of its members. It also promotes the interests of the public in relation to the profession...
. They formulate rules and pass them to the Court as an Act of Sederunt for approval.
Sheriff Courts rules
Rules for the functioning of civil procedure in the Sheriff courts are recommended by the Sheriff Courts Rules Council, which was instituted by the Sheriff Courts (Scotland) Act 1971. This Council's membership comprises: two sheriffs principalSheriff Principal
The office of sheriff principal is unique within the judicial structure of Scotland, and it cannot therefore readily be compared with any other judicial office. It is one of great antiquity, having existed continuously since around the 11th century...
, three sheriff
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....
s, one advocate, five solicitors, two (whole-time) sheriff clerks and two further members, all appointed by the Lord President and a further member appointed by the Scottish Ministers.
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
Messenger-at-arms
A messenger-at-arms is an officer of the Scottish Court of Session, responsible for serving documents and enforcing court orders throughout Scotland. Messengers-at-arms must have a commission as a sheriff officer although, unlike sheriff officers, the jurisdiction of a messenger-at-arms is not...
are enacted:
Those for setting the fees of Sheriff officer
Sheriff officer
A sheriff officer is an officer of the Scottish Sheriff Court, responsible for serving documents and enforcing court orders. The jurisdiction of a sheriff officer is limited to the area of their commission , unlike messengers-at-arms...
s are enacted: