词条 | Act of Sederunt |
释义 |
An Act of Sederunt ({{IPAc-en|s|ə|ˈ|d|ɛ|r|ə|n|t}} {{respell|sə|DERR|ənt}}; meaning a meeting or sitting of a court) is secondary legislation made by the Court of Session, the supreme civil court of Scotland, to regulate the proceedings of Scottish courts and tribunals hearing civil matters.[1][2][3] Originally made under an Act of the Parliament of Scotland of 1532, the modern power to make Acts of Sederunt is largely derived from the Courts Reform (Scotland) Act 2014.[4] Since 2013, draft Acts have also been prepared by the Scottish Civil Justice Council and submitted to the Court of Session for approval.[5]{{rp|[s. 2]}} 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]{{rp|[s. 27]}} HistoryCollege of Justice Act 1532The Court of Session—more accurately the College of Justice—was established by the Parliament of Scotland under James V in 1532. The Act of Parliament establishing the Court, later named the College of Justice Act 1532, provided that the Court would have "such [...] rules and statutes as shall please the king's grace to make and give to them" and "ordain[ed] the same to have effect in all points and [that the] processes, sentences and decreets shall have the same strength, force and effect as the decreets of the lords of session had in all times bygone." That is, that the rules of the Court of Session were to be made by the King and to have the same force as the decrees of the Lords of Session had before.[17][18] College of Justice Act 1540Although established in 1532, it wasn't until the passing of the College of Justice Act 1540 (originally titled Ratification of the institution of the college of justice) that the Court of Session gained the power to make law through Acts of Sederunt. The Act granted the Lord President, the Vice-President, and the Senators of the College of Justice the "power to make such acts, statutes and ordinance as they shall think expedient for ordering of processes and the hasty expedition of justice."[19] Courts Act 1672{{see also|High Court of Justiciary|Acts of Adjournal}}The Courts Act 1672 (originally Act concerning the regulation of the judicatories) created the High Court of Justiciary, the supreme criminal court of Scotland, by attaching five of the Lords of Session to the Lord Justice General and Lord Justice Clerk. The Courts Act also provided that "the judges of that court [...] regulate the inferior officers thereof, and order every other thing concerning the said court," and so created the distinction between Acts of Sederunt and Acts of Adjournal which continues to exist to this day.[20][21] Following a 19th-century reforming of the High Court of Justiciary, all Lords of Session were ex officio Lords Commissioners of Justiciary, instead of the original five ordained by the Courts Act.[22]{{rp|[s. 44]}} Although that reformation was repealed, its effect was replicated by the Criminal Procedure (Scotland) Act 1995, which provided that the Lord President of the Court of Session was also to hold the office of Lord Justice General.[23]{{rp|[s. 1]}} Administration of Justice (Scotland) Act 1933The powers of the Court of Session to make Acts of Sederunt were partially consolidated by the Administration of Justice (Scotland) Act 1933, which also made significant changes to the structure and operations of the Court. One of these significant changes was the establishing of a Rules Council, composed of the Lord President as well as Court of Session judges and practising lawyers, to propose Acts of Sederunt to the Court. The Act also created a Sheriff Court Rules Council, to carry out the same functions but in relation to the sheriff courts.[24]{{rp|[ss. 18, 35]}} Sheriff Courts (Scotland) Act 1971The 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.[25]{{rp|[ss. 33–34]}} Court of Session Act 1988The Court of Session Act 1988 was another consolidating Act, now with sections relating to Acts of Sederunt largely repealed or modified by the Courts Reform (Scotland) Act 2014, that also altered the structure of the Court of Session. The remaining powers to make Acts of Sederunt relate to summary trials—although the actual power is now derived from the Courts Reform (Scotland) Act 2014—and the considering of applications to appeal to the Inner House by a single judge.[26]{{rp|[ss. 26, 31A]}} Scottish Civil Justice Council and Criminal Legal Assistance Act 2013The 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]{{rp|[s. 2]}}[4]{{rp|[Sch. 5 paras. 18, 31]}}[31]{{rp|[Sch. 1 para. 1]}} Courts Reform (Scotland) Act 2014The 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.[27]{{rp|[s. 68]}}[4] Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016The Court of Session's power to create Acts of Sederunt was extended by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 to include the power to regulate the practice and procedure of public inquiries and fatal accident inquiries.[28]{{rp|[s. 36]}} PowersAs with other secondary legislation, an Act of Sederunt can only make law within the scope set out by an enabling act—an item of primary legislation from which power to make secondary legislation is derived. Most powers of the Court of Session were consolidated into the Courts Reform (Scotland) Act 2014, but other powers continue to be provided by the Public Records (Scotland) Act 1937, the Court of Session Act 1988, the Judiciary and Courts (Scotland) Act 2008, the Legal Services (Scotland) Act 2010, the Tribunals (Scotland) Act 2014, the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, and others. 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]{{rp|[s. 103(3)]}} {{Columns-list|colwidth=22em|
}} 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.[47] Court procedureRules of the Court of SessionRules 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][48] 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 rulesRules for the functioning of civil procedure in the sheriff courts are also prepared by the Scottish Civil Justice Council. Enacting formulaeActs 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: {{cquote|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::-}}[26]{{rp|[s. 5]}}[49]Those for the regulation of procedure in the sheriff courts begin: {{cquote|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:-[25]{{rp|[s. 32]}}[50][51]}} Those for setting the fees of messengers-at-arms are enacted: {{cquote|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:[26]{{rp|[s. 5]}}}}Those for setting the fees of sheriff officers are enacted: {{cquote|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:[52]}}References1. ^{{cite web | url=http://www.dsl.ac.uk/entry/snd/sederunt | title=Dictionary of the Scots Language :: SND :: Sederunt n., adj. | publisher=Scottish Language Dictionary | work=Scottish National Dictionary | date=2004 | accessdate=2 April 2017}} {{CourtsScotland2}}{{UK legislation}}{{DEFAULTSORT:Act Of Sederunt}}2. ^{{Citation|last=RobertBurnsVideos|title=Robert Burns - Act Sederunt of the Session (read by Paul Young)|date=2010-02-01|url=https://www.youtube.com/watch?v=MjbyNYNGooA|accessdate=2018-03-30}} 3. ^{{Citation|title=Subordinate Legislation Committee - Scottish Parliament: 18th December 2012|url=https://www.youtube.com/watch?v=hjUEWRzzQwY|language=en|accessdate=2018-03-30}} 4. ^1 2 3 4 5 6 7 8 9 {{Cite legislation Scotland|type=act|year=2014|chapter=18|act=Courts Reform (Scotland) Act 2014}} 5. ^1 2 {{Cite legislation Scotland|type=act|year=2013|chapter=3|act=Scottish Civil Justice Council and Criminal Legal Assistance Act 2013}} 6. ^{{cite legislation UK|type=si|year=1999|number=1096|si=The Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999}} 7. ^1 {{Cite legislation Scotland|type=act|year=2010|chapter=10|act=Interpretation and Legislative Reform (Scotland) Act 2010}} 8. ^{{cite web| title=Sederunt| url=http://www.tiscali.co.uk/reference/dictionaries/difficultwords/data/d0011679.html| publisher=Dictionary of Difficult Words |accessdate=2007-11-21}} 9. ^1 {{EB1911|inline=1|title=Sederunt, Act of|volume=24|page=577|url=https://archive.org/stream/encyclopaediabri24chisrich#page/577/mode/1up}} 10. ^1 {{citation | title=Rule-Making in the Courts of the Empire | jstor=752486 | author=Samuel Rosenbaum | periodical=Journal of the Society of Comparative Legislation | series=New Series | volume=15 | year=1915 | issue=2 | pages=132–133 | publisher=British Institute of International and Comparative Law}} 11. ^{{citation | title=Section 5, Court of Session Act 1988 | url=http://www.opsi.gov.uk/acts/acts1988/ukpga_19880036_en_2#pt2-l1g5| periodical=Acts of the United Kingdom Parliament | volume=1988 | issue=36 | pages=5 | publisher=Office of Public Sector Information | accessdate=2009-08-29}} 12. ^1 {{citation | date=1971-06-27| title=Sheriff Courts (Scotland) Act 1971 | periodical=Acts of the United Kingdom Parliament | volume=1971 | issue=58 | pages=32–34 | url=http://www.statutelaw.gov.uk/documents/1971/58/ukpga/c58 |publisher=UK Statute Law Database |quote=the Court of Session may by act of sederunt regulate and prescribe the procedure and practice to be followed in any civil proceedings in the sheriff court | accessdate=2009-08-29}} 13. ^{{citation | year=1907 | title=Sheriff Courts (Scotland) Act 1907 | periodical=Acts of the United Kingdom Parliament | volume=1907 | issue=5 | pages=40 | url=http://www.statutelaw.gov.uk/documents/1907/51/ukpga/c51 | publisher=UK Statute Law Database | quote=The Court of Session may from time to time, by Act of Sederunt, make such regulations, for regulating the fees of agents | accessdate=2007-11-26}} 14. ^{{citation | title=Execution of Diligence (Scotland) Act 1926 | periodical=Acts of the United Kingdom Parliament | volume=1926 | issue=16 | pages=6 | url=http://www.statutelaw.gov.uk/documents/1926/16/ukpga/c16 |publisher=UK Statute Law Database |quote=The Court of Session may by Act of Sederunt and fix the fees payable to messengers-at-arms, sheriff officers or others | accessdate=2007-11-26}} 15. ^{{citation |title=Section 305, Criminal Proceedings (Scotland) Act 1995 | periodical=Acts of the United Kingdom Parliament | volume=1995 | issue=23 | pages=305 | url=http://www.opsi.gov.uk/ACTS/acts1995/ukpga_19950046_en_23#pt14-l1g305 |publisher=Office of Public Sector Information | quote=The High Court may by Act of Adjournal… regulate the practice and procedure in relation to criminal procedure | accessdate=2007-11-22| archiveurl= https://web.archive.org/web/20071107035018/http://www.opsi.gov.uk/ACTS/acts1995/ukpga_19950046_en_23| archivedate= 7 November 2007 | deadurl= no}} 16. ^{{citation |title=Civil Procedure Act 1997 | periodical=Acts of the United Kingdom Parliament | volume=1997 | issue=12 | pages=3 | url=http://www.statutelaw.gov.uk/documents/1997/12/ukpga |publisher=Statute Law Database | quote=A statutory instrument containing Civil Procedure Rules shall be subject to annulment in pursuance of a resolution of either House of Parliament.| accessdate=2009-08-29}} 17. ^{{cite book | url=http://www.rps.ac.uk/trans/1532/6 | title=College of Justice Act 1532 | publisher=Records of the Parliaments of Scotland | year=1532}} 18. ^{{citation|title=An institute of the law of Scotland: in four books : in the order of Sir George Mackenzie's Institutions of that law|url=https://books.google.com/books?id=CIEDAAAAQAAJ&pg=PP5#v=onepage&q=|year=1824|quote=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"|author1=John Erskine|author2=George Mackenzie|author3=James Ivory|periodical=19th-century legal treatises|issue=4217-4230|page=16|publisher=Bell & Bradfute|accessdate=2 May 2017}} 19. ^{{cite book | url=http://www.rps.ac.uk/trans/1540/12/64 | title=College of Justice Act 1540 | publisher=Records of the Parliaments of Scotland | year=1540}} 20. ^{{cite book | url=http://www.rps.ac.uk/trans/1672/6/50 | title=Courts Act 1672 | publisher=Records of the Parliaments of Scotland | year=1672}} 21. ^{{cite book | url=https://archive.org/details/adictionaryandd01rossgoog | title=A Dictionary and Digest of the Law of Scotland, with short explanations of the most ordinary English law terms | publisher=Bell & Bradfute | author1=Bell, William | year=1861 | pages=122 | author2=Ross, George | quote=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.}} 22. ^{{cite legislation UK|type=act|year=1887|chapter=35|act=Criminal Procedure (Scotland) Act 1887}} 23. ^{{cite legislation UK|type=act|year=1995|chapter=45|act=Criminal Procedure (Scotland) Act 1995}} 24. ^{{Cite legislation UK|type=act|year=1933|chapter=41|act=Administration of Justice (Scotland) Act 1933}} 25. ^1 {{Cite legislation UK|type=act|year=1971|chapter=58|act=Sheriff Courts (Scotland) Act 1971}} 26. ^1 2 3 {{Cite legislation UK|type=act|year=1988|chapter=36|act=Court of Session Act 1988}} 27. ^1 2 {{cite legislation Scotland|type=act|year=2014|chapter=10|act=Tribunals (Scotland) Act 2014}} 28. ^1 2 {{Cite legislation Scotland|type=act|year=2016|chapter=2|act=Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016}} 29. ^{{citation| title=An institute of the law of Scotland: in four books : in the order of Sir George Mackenzie's Institutions of that law | author1=John Erskine | author2=George Mackenzie | author3=James Ivory | year=1824 | page=16 | periodical=19th-century legal treatises | issue=4217-4230 | url=https://books.google.com/books?id=CIEDAAAAQAAJ&pg=PP5#v=onepage&q= | publisher=Bell & Bradfute | quote=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.95" | accessdate=2009-08-29}} 30. ^{{citation| title=A Handbook of the Law of Scotland | author=James Lorimer | year=2000 | page=3 | isbn=0-543-96733-6 | url=https://books.google.com/books?id=WlpWicPntA4C&lpg=PA3&dq=Act%20of%20Sederunt%201540%20c.%2093&pg=PA3#v=onepage&q=Act%20of%20Sederunt%201540%20c.%2093 | publisher=Adamant Media Corporation | quote=the Court having a delegated power from Parliament to "make sik actes, statutes, and ordinances, as they sall thinke expedient, ordouring proces, and haistie expedition of justice." | accessdate=2009-08-29}} 31. ^{{citation| title=The land laws, as they affect landowners, farmers, workers, and consumers. | year=1879 | pages=6–7 | periodical=LSE Selected Pamphlets | jstor=60217587 | quote=In 1756 the Judges of the Court of Session in Scotland, not in any case which was judicially before them, but assuming the functions of Parliament, passed an Act "Anent removings."| publisher=null}} 32. ^{{citation| title=A letter to the Right Hon. Robert Peel on the courts of law in Scotland. | year=1823 | page=5 | periodical=Hume Tracts | jstor=60210401 | publisher=University College London | quote=during the same period by the Court of Session, in virtue of their legislative, and most questionable, powers. }} 33. ^{{citation| title=Letter to Sir Edward Burtenshaw Sugden, solicitor-general of England | year=1830 | page=29 | periodical=Hume Tracts | jstor=60205997 | publisher=University College London | quote=practice of making Acts of Sederunt, that he had arrived at the conviction that they were illegal | author1=Wallace, Robert}} 34. ^{{citation| title=A letter to the Earl of Lauderdale: to prove that the High Court of Parliament has a jurisdiction in cases of appeal against the judgments of the Court of Justiciary in Scotland | author=John Martin | year=1793 | periodical=Cowen Tracts | page=42 | jstor=60202345 | publisher=Newcastle University | quote=for we find instances in which that court has controuled the Court of Justiciary by acts of Sederunt, and even reversed its sentences. }} 35. ^{{citation| title=Letter to Sir Edward Burtenshaw Sugden, solicitor-general of England | year=1830 | page=47 | periodical=Hume Tracts | jstor=60205997 | publisher=University College London | quote=Acts of Sederunt, which, quoad Scotland, become Laws; such a power, this Meeting humbly submit, would be found more beneficial to Scotland if it were in future to be solely exercised by Parliament | author1=Wallace, Robert}} 36. ^{{citation | title=Remarks on law reform relative to the civil and criminal jurisdiction of sheriffs in Scotland. | periodical=Hume Tracts | volume=1837 | pages=5 | jstor=60209841 |publisher=University College London |quote=It should be mentioned, that by a late act of sederunt of the Court of Session, it is competent to the sheriff-substitute to refuse to allow the appeal to the sheriff-depute against any interlocutor which, in his opinion, ought to be carried into immediate effect. | year=1837}} 37. ^{{citation| title=The Origins of the Legal Profession in Scotland | author=R. D. Carswell | year=1823 | volume=11 | issue=1 | page=44 | periodical=The American Journal of Legal History | jstor=844504 | publisher=Temple University | quote=procuratouris or advocattis may compeir and procuir in all civile actionis for the perseware [plaintiff] in persewing or for the defendare [defendant] in his defence. }} 38. ^{{citation| title=Criminal Procedure in Scotland | author=Edwin R. Keedy | year=1913 | volume=3 | issue=5 | page=737 | periodical=Journal of the American Institute of Criminal Law and Criminology | jstor=1132916 | publisher=Northwestern University | quote=The qualifications for law agents are fixed by acts of Parliament and various Acts of Sederunt, passed by the Court of Session }} 39. ^{{citation | title=Sections 25 to 29, Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 | url=http://www.statutelaw.gov.uk/documents/1990/40/ukpga/c40 | periodical=Acts of the United Kingdom Parliament | volume=1990 | issue=40 | pages=25–29 | publisher=Office of Public Sector Information |accessdate=2009-08-29}} 40. ^{{cite legislation Scotland|type=ssi|year=2009|number=163|ssi=Act of Sederunt (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) (Association of Commercial Attorneys) 2009}} 41. ^{{citation| title=George Mackenzie on Scottish Judicial Rhetoric | author=Beth Innocenti Manolescu | year=2002 | volume=20 | issue=3 | periodical=Rhetorica | page=283 | jstor=20135775 | publisher=University of California Press | quote=it is illegal by an Act of Sederunt prescribing syllogistic rather than rhetorical pleading }} 42. ^{{citation | date=1983-04-11 | title=Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 | periodical=Acts of the United Kingdom Parliament | volume=1983 | issue=12 | pages=4 | url=http://www.statutelaw.gov.uk/documents/1983/12/ukpga/c12 |publisher=UK Statute Law Database |quote=The Secretary of State may, by order regulate the fees payable | accessdate=2009-08-29}} 43. ^1 {{cite legislation UK|type=act|year=1937|chapter=35|act=Public Records (Scotland) Act 1937}} 44. ^{{Cite legislation Scotland|type=act|year=2008|chapter=6|act=Judiciary and Courts (Scotland) Act 2008}} 45. ^{{Cite legislation Scotland|type=act|year=2007|chapter=6|act=Criminal Proceedings etc. (Reform) (Scotland) Act 2007}} 46. ^{{cite legislation Scotland|type=act|year=2010|chapter=16|act=Legal Services (Scotland) Act 2010}} 47. ^{{cite legislation Scotland|type=ssi|year=2011|number=312|ssi=Act of Sederunt (Regulation of Advocates) 2011}} 48. ^{{Cite web|url=http://www.scottishciviljusticecouncil.gov.uk/council|title=Council|website=www.scottishciviljusticecouncil.gov.uk|access-date=2017-05-05}} 49. ^{{UK SI| year=1997 | number=1720 | title=Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (No. 1720 (S.129)) | isbn=0-11-055640-2 | url=http://www.statutelaw.gov.uk/documents/1997/1720/uksi | made=1997-07-11 | force=1997-08-01 }} 50. ^{{cite legislation UK|type=act|year=1971|chapter=58|act=Sheriff Courts (Scotland) Act 1971|section=34}} 51. ^{{cite legislation Scotland|type=ssi|year=2006|number=198|ssi=Act of Sederunt (Sheriff Court Caveat Rules) 2006}} 52. ^{{cite legislation Scotland|type=ssi|year=2004|number=515|ssi=Act of Sederunt (Fees of Messengers-at-Arms) 2004}} 3 : Scots law|Statutory law|Court of Session |
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