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APS and asps

14 May 18

Surviving Acts of the pre-1707 Scots Parliament are dwindling in number, more so since the arrival of the modern Parliament – which has however respected the old language if retaining but amending APS

by Andrew Stevenson

The Parliament of Scotland last legislated in 1707. But many of its Acts (commonly abbreviated to APS, used both as singular and plural) continued to apply into modern times. Some still remain in force. But all APS are susceptible to repeal or amendment by successor legislatures. Initially there was one, the Parliament of Great Britain (or, from 1801, the Parliament of the United Kingdom), but in addition, since 1999, the (new) Scottish Parliament has been able to legislate to scrap or alter APS. Acts of the latter body are known as asps.

Plenty of APS have been abolished by asps. The earliest instance of a simple repeal occurred when the Adults with Incapacity (Scotland) Act 2000, asp 4, abolished the Curators Act 1585. This APS, enacted when Mary Queen of Scots was still in English captivity, had been scrutinised by Lord Abernethy in the sad case of Britton v Johnstone 1992 SCLR 947.

The court’s task was unenviable: a 23 year old mother had been seriously injured in infancy and rendered incapable of managing her own affairs. Finding himself with no modern remedy open to him, her father petitioned the Court of Session to have himself appointed as her tutor at law under the 1585 Act. In doing so he was compelled to aver that his daughter fell within the category of “natural foulis Ideottis and furious” persons. His Lordship held that she did so fall, having first repelled an argument by counsel for the respondent that the Act was not still in force. Clearly, though, a modern court is almost bound to have a difficulty in interpreting a statute in order to ascertain Parliament’s intention where the language of the Act concerned is so antiquated.

The next Act to emanate from the modern Scottish Parliament was the Abolition of Feudal Tenure (Scotland) Act 2000, asp 5. This was about as radical as possible in terms of its effect on our system of landownership. It swept away the Feu-duty Act 1597, the Registration Act 1661, the Ann Act 1672, the Entail Act 1685, the Udal Tenure Act 1690 and the Teinds Act 1690 (ann, incidentally, was a now obsolete form of payment made to the next of kin on the death of a church minister).

Sensitive development

Interestingly, however, amongst the revolutionary changes that it wrought, the 2000 Act subtly amended two APS, the Mines and Metals Act 1592 and the Real Rights Act 1693.

An easy way to have accomplished the amendments would have been to have repealed these old Acts and to have completely re-enacted them, with their terms recast in modern parlance or spelling. However, to its credit, the Scottish Parliament eschewed this equivalent of demolition and reconstruction. Instead, it employed language appropriate to the era when these old statutes were passed.

The 1592 Act originally provided that, inter alia, the King could in some circumstances intervene to mine valuable metals in land where the owner failed to do so after his having been so required before a notary and four witnesses. The legislators of 2000 decided that a single witness would do rather than a quartet, but rather than substituting “one witness” for “four witnesses” they replaced the original words with “ane witness”. The Scots word “ane” occurs elsewhere in the Act eight times, the English word “one” not at all. It is not that “one” would not have made perfect sense, but it would have resulted in linguistic or anachronistic inelegance. The careful use of old spelling in the 2000 Act occurs again where the 1592 phrase “saidis fewis” (said feus) is substituted with “disposition of the saidis mynis”, rather than of “the said mines”. The terms “saidis”, “mynis” and indeed “saidis mynis” are used elsewhere in the old Act but never “mines”.

Similarly, in relation to the 1693 APS the 2000 asp makes an amendment which introduces text so that there is now the repetition of the word “reall”. The word “real” is avoided. Incidentally, the short titles of both these APS were conferred only in 1964, using contemporary spelling.

Some might claim that this care is wasted on what are by any standard pretty obscure pieces of legislation. And introducing modern English language in no way hinders interpretation of the APS. But another view is that these old Acts are a part of Scottish history and heritage. Preserving them maintains a continuity in at least some of our laws from when Stuart monarchs were on the throne.

Force for reform

The Scottish Parliament is a prolific legislator, passing Acts on everything from tartan to travelling circuses. And many APS have been casualties in the process. The most destructive asp in that respect has been the Bankruptcy and Diligence etc (Scotland) Act 2007, asp 3. It obliterated five Jacobean ASPs, the earliest being the Decrees in Absence Act 1584. Also repealed by it were three Acts of Charles II, although one of them, the Adjudications Act 1672, will remain in force until the Scottish Government overcomes its reluctance to trigger the commencement of the land attachment provisions of the 2007 Act.

Another of Charles’s APS, the Redemptions Act 1661, enjoyed new attention only to be snuffed out soon afterwards; the 2000 Act amended it but the Title Conditions (Scotland) Act 2003, asp 9, repealed it. The 2003 Act also performed excisions on the Registration Act 1617.

In relation to criminal law, the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, asp 15 excised the almost poetic “and fisches in propir stankis and loches” from the Theft Act 1607.

Last survivors

APS are a rare breed, and dwindling in number. The least vulnerable are probably those relating to ecclesiastical or heraldic matters. The latest casualty was the Parricide Act 1594, repealed by the Succession (Scotland) Act 2016, asp 7.

APS do still sometimes emerge to provide interest in the courts. So Dickson and McNaughton v HM Advocate [2007] HCJAC 65 looked at the Claim of Right Act 1689. Hepburn v Royal Alexandra Hospital [2010] CSIH 71 considered the College of Justice Act 1540. Two more recent cases concerned rarely deployed remedies provided by APS in the context of the Human Rights Act 1998. Hull v Campbell [2011] CSOH 24 scrutinised the 1672 Act in relation to adjudication for debt, and in Duff v Shearer [2014] SC DUM 33, the sheriff required to peruse the Lawburrows Act 1581. All four of these APS are survivors, so far.

Ironically, one of the last APS, the Election Act 1707, was repealed not by an asp but by the Electoral Administration Act 2006, a piece of UK legislation.

Andrew Stevenson, solicitor advocate, Glasgow

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Andy Wightman

Wednesday May 9, 2018, 18:16

And, interestingly, the Scottish Ministers, in response to Written Questions and a proposed amendment to the Land Reform (Scotland) Act 2016, have refused to repeal the Division of Commonties Act 1695 arguing that it continues to have contemporary relevance.