(213)  Scottish Parliament at work: from dog fouling to tenant farmers

As the first term of the Scottish Parliament drew to a close, two significant measures completed their parliamentary passage.  The Dog Fouling (Scotland) Bill, source of much press derision, was passed on 13 March 2003: it allows council officers to impose on-the-spot fines of £40 on those who fail to scoop poop, this becoming a civil offence without the need for corroboration.  The Agricultural Holdings (Scotland) Bill, passed on 12 March 2003, allows tenant farmers a right to buy when the landowner decides to sell, and enables them to use the land for non-agricultural purposes.  Like the Land Reform (Scotland) Act 2003, this Bill is controversial because some think that the incentive to invest in landownership is being significantly reduced.

(212)  The Scottish judiciary and the Speculative Society

On 13 March 2003 the High Court of Justiciary repelled Robbie the Pict’s petition to the nobile officium in which he sought to show that any judge who is a member of the Speculative Society is disqualified ipso facto from participating in his case on various matters relating to the Skye Bridge tolls (see below No 209).  Robbie had argued that the history of the Society showed that its origins were linked to masonic or quasi-masonic movements and that today it is elitist, sexist, racist and unionist [para 14].  Giving the opinion of the court, Lord Justice Clerk Gill said: On the information before us, we conclude that the Society is neither secret nor sinister and that it simply makes its own refined contribution to the public stock of harmless pleasure. It appears to be careful in its choice of members, but many societies are. Those elected are no doubt happy to be members. Others will be happy not to be. Live and let live is a useful principle in such matters. … We can see no reason why any reasonable onlooker could suspect that the loyalties and friendships that typify any society of this kind should in this case override the obligations of the judicial oath [para 26].  Lord Gill also noted that (para 20) The Society is a society for young men. According to the affidavit, the Society can have no more than 30 ordinary members at any time. Membership is gained by invitation and is subject to voting by secret ballot. The rules provide for a procedure of black-balling. When a member joins, he joins as an ordinary member for a period of three years. There is nothing in the rules to prohibit female membership, but there are no female members and there have never been any [para 20]. 

Lord Gill continued to decline to answer Robbie’s question: Have you [the judges in the case] ever taken the oath or entered apprentice at first degree for the purpose of entering into Masonic association, or are you obliged by any expectation of loyalty which has the potential to produce an imbalanced judgment in a tribunal such as this?  His Lordship observed that masonic membership was not per se a ground of judicial disqualification and stated: We refused to answer the petitioner’s question when he put it to us and we refuse to answer it now. The petitioner has failed to show why his question has any bearing on the issues in this case [para 7]. 

Finally, a further argument put by Robbie the Pict was dismissed as follows: [10] The petitioner also submitted that the judicial oath taken by each of us was itself invalid. This submission was based upon article 19 of the Act of Union 1707, as interpreted in the light of the Treaty of Birgham 1290, the Declaration of Dundee 1310, the Declaration of Arbroath 1320, and the Treaty of Edinburgh 1327. The petitioner submitted that the Act of Union was never implemented and that no lawful constitutional union existed between the Kingdoms of Scotland and England. His conclusion was that the judicial oath sworn by each of us was an oath only to the Queen of England and Wales and not to the sovereign people of Scotland. [11] The petitioner gave no notice of this submission. For that reason alone we cannot entertain it. In any event, we could not consider a point of such significance on the exiguous arguments advanced by the petitioner.

(210)  Hohfeld and irritancy in the Court of Session

Per Lord Eassie, in Glasgow City Council v Morrison Developments Ltd 2003 SLT 263, 267:

[19] In my opinion – as canvassed during the discussion of this branch of the argument – while it may be convenient to talk of a landlord’s right to irritate a lease this is perhaps a good example of the dangers of such convenient, but inaccurate, usage described by W N Hohfeld in his collected papers on Fundamental Legal Conceptions as Applied in Judicial Reasoning. Adopting Hohfeld’s well known analysis, imparted latterly to every student of jurisprudence, it is evident, in my view, that the right to irritate a lease has no duty as its jural correlative. Put in other, perhaps simpler, words the service of a notice of irritancy does not create any additional obligation on the tenant. It is the exercise of a possible remedy for a previous breach of contract. If the landlord chooses to exercise that power or privilege, the tenant suffers the loss of his tenancy but he does not thereby incur any duty or obligation. That jural nature of irritancy as a privilege is reflected in earlier 19th century cases such as Lindsay v Hogg (1855) 17D 788 and Bidoulac v Sinclair’s Tr. (1889) 17R 144. However, section 6 of the Act, read with the defining Schedule 1 to the Act, is couched or structured in terms of obligation. Since the power or privilege to the landlord to irritate the lease has no correlative obligation on the part of the tenant, it is, I think, impossible to see how that power or privilege could be brought within the scope of paragraph 1 of Schedule 1 to the Act, even having regard to the provisions of section 15(2) of the Act. It was suggested in the course of the discussion that the power or privilege to irritate might come within the concept of res merae facultatis and thus within the category of a right which was imprescriptible, in terms of Sections 7 and 8 and Schedule 3, head (c) of the Act. I was referred to Mr Johnston’s discussion of that topic at 3.07ff. However, I have reservations as to whether the power to irritate can be seen as being the exercise of a right exercisable as a res merae facultatis. It appears to me that essentially the power to irritate is a remedy for a breach of contract. It may be open to defences of personal bar or waiver, but there is nothing respecting questions of personal bar or waiver arising in the present case, other than the proposition – which I have rejected as unsound – that the obligations upon whose breach the notice of irritancy was founded had been extinguished in terms of Section 6 of the Act.

(209)  The Scottish judiciary and the Speculative Society

Proceedings began at the Court of Session on 18 February 2003 in a petition raised by Robbie the Pict, who argues that the Scottish judiciary cannot act impartially in litigation by him in connection with the Skye Bride tolls because many of them are members of the Speculative Society as are a number of other figures connected with the building of the bridge.  Judges who are members of the Society should therefore be barred from hearing cases in which he is involved.  The case is being heard by Lord Justice Clerk Gill and Lords Kirkwood and Wheatley, none of whom have been or are members of the Speculative Society.  At the outset of the proceedings, however, Robbie asked the judges whether they belonged to a Masonic order.  Lord Gill indicated that the judges would consider answering this question when delivering their opinions.  After debate on the issues, it was announced that a written judgment would be delivered later.  The Speculative Society first met in Edinburgh University in 1764 and has rooms still in the University’s Old College building.  Its membership is current and former Edinburgh university students, but only of the male gender, and it meets for debates and the reading of papers.  A membership list is available at http://www.firstfoot.com/scotchmyth/ssoemembers.htm.