The Scottish Government has now agreed plans with Tory MSP Jamie McGrigor under which his Register of Tartans Bill (see previously Nos 608, 642, 674) will be brought back before the Scottish Parliament and given a fair wind to become an Act within the next year.  The announcement on 11 September 2007 did not say where the register would be located: the city of Inverness is understood to be making a bid to have it, although the register will be based on one already maintained by the Scottish Tartans Authority, based in Crieff (see http://www.tartansauthority.com/).   



The summer of 2007 saw various newspapers and individuals campaigning against unfair bank charges, leading – directly or indirectly – to a High Court case in England initiated by the Office of Fair Trading (see http://www.oft.gov.uk/news/press/2007/126-07) with a hearing due in January 2008. The case focuses on whether unauthorised charges for overdrafts are unfair under the Unfair Terms in Consumer Contract Regulations (UTCCR). One of the intentions in this general action is to stay a plethora of cases raised in the English county courts by individuals seeking repayment of charges, pending an authoritative High Court ruling.

However, no equivalent action has been raised in the Scottish courts where, accordingly, some similar actions are still being brought by individuals – apparently about 120 altogether. The first detailed judgment in a Scottish bank charges since the OFT action was announced appeared on the Scottish courts website on 10 September 2007 in Coleman v Clydesdale Bank and Thomson v Bank of Scotland  (see http://www.scotcourts.gov.uk/opinions/clyde.html), small claim and summary cause cases raised in Inverness and heard by Sheriff Derek Pyle.  In these cases the pursuers were customers seeking to recover the bank charges on two grounds: (a) that the charges were penal (and thus unenforceable); and (b) that the charges were unfair under the UTCCR. In both cases the banks (represented by the same counsel) argued that the case should be sisted pending the decision in the English High Court case.  In the 120 cases in Scotland decided prior to Coleman all bar one had been sisted on this ground. The banks argued that sisting was essential as a result of the OFT action, and the similarities between Scots and English law in the area. The banks also argued that a multiplicity of actions would cause uncertainty as well as administrative pressures on the Scottish courts (a floodgates argument – now it’s not every day that you see one of those).

In the Inverness cases, however, Sheriff Pyle rejected the motion to sist, in a carefully reasoned decision relying on general principles of civil procedure and fundamentals of the Scots law of judicial precedent. His starting point was that sisting an action was at the discretion of the court, and the onus of establishing that an action should be sisted lay with the party so arguing. He was unconvinced by argument that a High Court decision would resolve matters. He pointed out that, under the doctrine of stare decisis, even where consideration is given to UK legislation a decision of the High Court in England does not bind a Scottish court.  He also equated the position of a judge in a High Court to that of a Lord Ordinary in an Outer House case in Scotland, pointing out that in civilibus a single Outer House decision does not bind a sheriff.  The sheriff’s trump card came next.   The OFT case is only on the UTCCR, without reference to the penalty issue.  The sheriff noted that counsel for the banks indicated that the argument in the High Court would take the penalty issue into account – but from the published documents the sheriff justifiably further noted, not yet. Accordingly, the application to sist the action was premature.

Sheriff Pyle also dismissed the issue about administrative burden, noting that the administrative burden on the courts per se is not a relevant consideration in deciding whether to sist a cause. It is the responsibility of the court, with the assistance of the Scottish Court Service, to provide proper facilities for litigation to proceed, for rights to be vindicated and remedies provided. It should be no concern of the pursuers in the instant actions that an additional administrative burden may be placed on precious resources simply because others wish to seek the same remedy as they do.  However, after reframing the argument to concentrate on the waste of resources he then dismissed that too, indicating that in considering potential waste of resources he should consider only the case before him. The sheriff noted:

It seems to me that I ought to have regard only to the burden on the defenders in each of the instant cases and not in any other similar cases which may arise in this court or in other courts in Scotland. Looking at the matter in this way, I consider that such a burden is insufficient to offset the respective pursuers’ right to have their claims adjudicated upon with proper dispatch. Even if I am wrong in that and do have to consider the administrative burden on the defenders in similar actions, I still do not consider that they have discharged the onus upon them, bearing in mind that to date there are only 350 actions or so proceeding in Scotland involving all of the banks who are the defendants in the OFT action. I was not told how many of these actions are against each of the defenders, but it must be only a fraction of that total.

Among the sheriff’s other observations is one pointed note on the OFT case. If the case had been raised before the commercial court in the Court of Session an authoritative ruling that would bind the sheriff courts would be in the offing, and he might have reached a different decision.



The First Minister announced his government’s 2007-2008 legislative programme in the Scottish Parliament on 5 September 2007.  The programme also appears in a document called Principles and Priorities: the Government’s Programme for Scotland (accessible at http://www.scotland.gov.uk/Publications/2007/09/05093403/0).  Eleven Bills are proposed. 


Of greatest legal interest are the Judiciary (Scotland) Bill (which will put the Judicial Appointments Board and judicial independence on a statutory footing – see previously Nos 100, 414, 463, 643), legislation to give effect to the Crown Office review and forthcoming Scottish Law Commission report on rape and sexual offences published in 2006 (see No 572), and an Interest on Debt and Damages Bill to develop fair and consistent rules for the application of interest rates to payments of debt and damages (also following on from a Scottish Law Commission Report No 203, published in 2006: see http://www.scotlawcom.gov.uk/downloads/rep203.pdf).


The Law Commission report on rape is not yet published.  Its Discussion Paper No 131, on Rape and Other Sexual Offences, indicates its scope – a new definition of consent; the inclusion of male rape within the scope of the offence; and the enhancement of protection of persons vulnerable to sexual exploitation.  Further details at http://www.scotlawcom.gov.uk/html/cpsexualoffences.htm.   


Other measures of interest to Scots Law News readers more generally include the Abolition of Bridge Tolls Bill (to remove tolls from the Forth and Tay as well as the Skye and other bridges), the Creative Scotland (hitherto the Culture) Bill and the Graduate Endowment (Abolition) Bill. 


None of this will set the heather on fire, but, crucially for a minority government, there should be enough parliamentary support for each Bill to ensure its passage into law in due course.  The First Minister also told Parliament that the Government would consider what support they could offer to the two Members’ Bills being proposed by Jamie McGrigor and Ken McIntosh on creating a register of tartans and restricting sunbed use respectively.  The latter will have to watch out for Tommy Sheridan’s human rights since he won’t be at Holyrood to defend them himself.  Scots Law News is however delighted to see the prospective resuscitation of the register of tartans, for which see previously Nos 608 and 642.




Steve Gough the Naked Rambler picked up his eleventh breach of the peace conviction on 4 September 2007.  Once again it was due to his leaving Saughton Prison in an unclad state at the end of a previous sentence, whereupon he was rearrested.  This took place on 31 July.  Evidence showed that there were several members of the public present on this occasion apart from the police who performed the arrest.  Sheriff Kathrine Mackie sentenced Gough to a further 83 days inside.  This will take him to almost 16 months’ imprisonment, or the equivalent of a three-year jail sentence. 




On 3 September 2007 the Scottish Ministers announced the formal adoption of the title Scottish Government to replace the term Scottish Executive as an expression of corporate identity.  The re-branding has immediate effect. Signs at the six main Government buildings in Edinburgh and Glasgow have already been changed but other material such as stationery will only be changed gradually to be as cost effective as possible in the transition.  The decision to adopt the new identity was taken because research showed that the term Scottish Executive was confusing or meaningless to many members of the public.  The legal name remains the Scottish Executive, however, thanks to section 44 of the Scotland Act 1998, which reads:


44. The Scottish Executive

(1) There shall be a Scottish Executive, whose members shall be—

(a) the First Minister,

(b) such Ministers as the First Minister may appoint under section 47, and

(c) the Lord Advocate and the Solicitor General for Scotland.

The next subsection adds:

(2) The members of the Scottish Executive are referred to collectively as the Scottish Ministers.

Meanwhile, the SNP Government continued to set hares running on the substance of the devolution settlement embodied in the Scotland Act (see previously No 665), raising questions about the reserved right to legislate on firearms (in particular in order to regulate the use of airguns in Scotland, the subject of petitions to the Scottish Parliament by families of victims of the misuse of such weapons).  A spokesman for the First Minister indicated on 25 August that the objective was a consolidated Firearms Act designed for Scottish needs and circumstances, and that there had been a sympathetic response to this from Whitehall.  Altogether less sympathetic, however, was the view of Scotland Office Minister David Cairns who told an oil industry conference in Aberdeen on 4 September that the UK Government had no intention of devolving oil and gas powers to Holyrood, despite overtures fro the First Minister about more Scottish control over the industry’s revenues.  The interests of both Scotland and the UK are best served through continued economic union and the benefits which accompany a UK-wide approach, said Mr Cairns.  Our thinking on this issue is therefore unequivocal – introducing needless uncertainty into an £11bn industry which supports half a million jobs is not an option for the UK Government.