Act of Sederunt - History

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.