Pots and kettles

We Scots seldom tire of telling ourselves how special we are. “Wha’s like us?” is part of the national psyche. In the law, this can lead to Scots lawyers insisting that our system is superior to all others.

In the case of England, our self-congratulatory approach leads us to girn that the English cannot understand Scots legal terminology. We look down on their system, although it has been exported all over the world and attracts huge respect from around the globe. We conveniently ignore the fact that from an international perspective, Scots law, in contrast, is barely on the radar.

How much of our prejudice stands up to scrutiny? Do we really get it right so often that others should sit up and take their lead from our law? Of equal importance, are we open-minded enough to take what is good from other jurisdictions – even England?

My perspective on this is drawn from my experience in media law, defamation, contempt of court, intellectual property, internet law and associated topics. Although my view is limited, it is at least based on areas where international commerce and communication are at the very heart of legal practice. The IT revolution, particularly the internet, has meant that for us media lawyers cross-jurisdiction communication and all the legal issues it raises are now the norm.

My observations from the conferences I have selflessly attended all across the world over the past years are these:

1.    The very existence of Scotland is not known in most countries and the fact that we have a separate system of law within the United Kingdom is news to most practising lawyers. So our international influence is minimal. But we should be proud to note that when Scots cases come to world attention, judgments of the Court of Session and High Court are almost invariably praised in other jurisdictions.

2.    Scottish procedural law is years behind most other modern jurisdictions. The length of time cases take and our excessive reliance on oral evidence are way out of date. In civil matters, our interim decisions, proceeding as they do on unproved statements by the pursuer which are treated pro veritate by the court, are 19th century. They have no place in the modern world and our courts should have attended to their reform decades ago.

Because of poor procedure, most multinational companies would not dream of litigating in Scotland unless forced to do so. In contrast, in the High Court in London, very often not one but both parties are foreign and have voluntarily submitted themselves to the English courts.

3.    Immediately after the introduction of the Human Rights Act to Scots law, there was a real willingness to take cited cases from other countries. This is perfectly normal technique in most sophisticated systems. But just recently there seems to have been something of a backsliding towards the “little Scotland” approach of looking at only domestic authorities. This approach is out of place in a legal system which is allegedly based on principle, not precedent. It is also over-optimistic in a small country which, at the end of the day, if we are truthful, has very little quality litigation in many areas.

4.    The Scottish system is slow to learn from other jurisdictions. While it would be perfectly acceptable in Canada, America, Australia or New Zealand to put forward arguments in an important case based entirely on novel propositions, most of our Scots judges, particularly at shrieval level, would be unwilling to deal with a case on that basis – particularly if all the cases cited came from abroad.

My conclusion from all this, sadly, is that, while we insult the English for insularity and congratulate ourselves for our broader view, in practice the reverse is true.

But there is reason to be cheerful. The attitude taken by the majority of Scots courts contrasts with that taken by our law students and recent entrants to the profession. They will often have spent a year studying abroad and are perfectly receptive to the wisdom of foreign legal systems, and to seeing themselves as citizens of the world who can work and live anywhere. As we move, as inevitably we must, towards more and more areas of law where we are required to have pan-continental systems, the refreshing attitude of these young Scots will serve us well. Is it just too much to hope for that there might be a change of attitude a little sooner?

As a start, is it outrageous to suggest that to facilitate this process the Law Society of Scotland conference could be held furth of the jurisdiction? An Eastern European destination, for example, would find us at the heart of the new Europe and enable us to have first hand contributions from many other legal systems. More young Scots lawyers would attend. It wouldn’t have the rain, greyness and overarching introspection we so enjoy on these shores – but I think we could stand it – just once.