Neil MacCormick was laid to rest on Friday 17 April 2009, and a memorial service was held the same day at Greyfriars Kirk in Edinburgh. An anonymous contributor has written this description of events.
Neil’s friends and admirers throughout the world who were unable to attend the service of thanksgiving in Greyfriars Kirk on Friday will want to know that it was a fitting and impressive occasion. The church was filled to capacity. The service was relayed to the overflowing numbers standing outside in the historic kirkyard under a cold grey sky.
The occasion was almost overwhelmingly sad but the service, conducted by the Rev Dr Iain Whyte, former Chaplain to the University of Edinburgh, was not dark. Within a framework of classic psalms there were readings by Professor Zenon Bankowski and the Rev Dr Johnston R Mackay. Neil’s cousin Donald MacCormick spoke movingly on “Remembering Neil in Family Life”; Dr Anne Lorne Gillies sang the beautiful Gaelic hymn, Leanabh an Aigh; Professor Neil Walker, Neil’s successor in the Regius Chair, spoke on “Remembering Neil in Academic Life”; Anne Lorne Gillies sang “A Man’s a Man for A’ That”; the Rt Hon Alex Salmond, First Minister for Scotland, and John Swinney, MSP, spoke on “Remembering Neil in Public Life”; and Owen Dudley Edwards read, with gusto and with feeling, “Blows the Wind Today” by Robert Louis Stevenson with its sad, sad final lines. There were not many dry eyes when he finished. The contributors were, without exception, magnificent. Those who spoke about Neil brought out touching and amusing memories of his humour and humanity. Although the heavy sense of irreparable loss was never far below the surface there was lightness too and laughter. Unusually for a service in a Scottish church, there were some irresistible bursts of spontaneous applause. The family and the congregation were piped out by Dr Martin Lowe, former Secretary to the University of Edinburgh: among the selected tunes was “The Lads that will return no more” composed by Neil’s grandfather – a fitting end to a fitting service.
It was just a short walk from Greyfriars to the reception in the Playfair Library in the Old College. The contrast between the splendid brown wooden roof in the church and the splendid painted ceiling in the Library was striking and reflected a subtle shift in mood. There were meetings and greetings between people who had not seen each other for years or even decades. There were exchanges of stories about Neil, and memories of Neil, and reflections on his amazing contributions at the highest possible level to so many areas of life. Eventually conversations turned to other things. That is what happens. That is what has to happen. That is what we would all like to happen. That is what Neil, more than most, would have liked to happen. Life goes on. For those who were closest it can never be the same again. But it goes on.
Scots Law News is grateful for this fine contribution. Another account was published in The Scotsman for 18 April, and can be read here. The text of the eulogy by Professor Neil Walker (Neil's successor in the Edinburgh Regius Chair) can be read here, and extracts from the eulogies of the First Minister and his Cabinet colleague John Swinney here.
Scots Law News is sad to report the death of Sir Neil MacCormick, formerly Regius Professor of Public Law and the Law of Nature and Nations in the University of Edinburgh, on 5 April 2009.
The facts of Neil's public career are recorded here. The Edinburgh Law School tribute is here, the SNP one here, and his son-in-law's here. There was also a nice tribute on the BBC's Reporting Scotland programme on 6 April, highlighting his political rather more than his academic career, and there are further comments on the BBC Scotland website, The Scotsman and The Herald for 7 April. The Scotsman, Telegraph, Times and Guardian obituaries (the last by David Edward) appeared on 7 April also. The Herald obituary, by George Reid, appeared about the same time.
Scots Law News can only confirm the good things that all these tributes highlight: especially the genius for friendship, the charismatic teaching and lecturing, the encyclopaedic knowledge lightly borne, and the evident good will to all which especially made him an inspiring and successful leader in the Edinburgh Law School and university, and indeed in the wider academic community. Scots Law News long ago lost count of the number of people from all over the world and many different backgrounds who, once the news of Neil's illness became widely known, asked after him as soon as an Edinburgh link was realised. Many of us will also long remember the fortitude and humour with which he faced up to his final illness, and hope that we will be able to do half so well when our time comes.
One story to illustrate the manner and style of Neil's teaching, which also shows the nature of the man. In the 1975-76 session he arrived in Room 270 Old College to deliver a lecture to the class of Jurisprudence. As he took to the podium he removed from his wrist with a characteristic flourish what was evidently a lady's watch. This produced catcalls from members of his audience. Neil smiled, explained that having broken his own watchstrap that morning he had borrowed his wife's watch so that he could keep to his allotted 50 minutes with the class, and then used the class reaction to analyse the difference between purely social rules (men's watches aren't the same as women's ones, lectures last for 50 minutes not the hour in the timetable) and legal rules (legal rules are a special kind of social rule). All that had been abstract and difficult for jurisprudence novitiates was pellucidly explained and suddenly obvious (if only for the duration of the lecture!). Either Neil had thought it all out before, in which case the expansive gesture with which he removed the watch was perfectly judged to get the reaction he wanted; or, more likely, it was unplanned but he could react with instant humour to an unexpected situation, engage with his audience, and turn the whole thing intellectually to support what he had anyway wanted to say. Whichever, it was a brilliant moment of theatre that remains vivid in at least one person's memory nearly 35 years later.
Scots Law News sends its condolences to Neil's lovely wife Flora, who has supported him heroically over the last year.
2 April 2009 was the 100th anniversary of the graduation of the first women in Scotland to take an LLB.
Eveline MacLaren (left) and Josephine Gordon Stuart (below right) entered the Faculty of Law at Edinburgh University in October 1906 and emerged with their degrees after stellar performances throughout their three academic years in Old College. But they could not enter the legal profession at the time; it took a world war to knock down the barriers that the law had erected to ensure that the profession remained a male preserve. Even then neither woman ever became a fully fledged lawyer; but throughout their lives they had close links to and indeed involvement with the legal profession. They both died in 1955, having also been born within a few days of each other in November 1883.
Edinburgh Law School will be marking this centenary with a number of events later in 2009, while a paper describing and assessing the lives of Eveline and Josephine will be published in the forthcoming Miscellany VI volume of the Stair Society.
The first female LLB graduate of Glasgow University was Madge Easton Anderson in 1919 (who in 1920 became the first woman to be admitted as a law agent in Scotland), while Aberdeen's first woman LLB was Elizabeth Barnett, who graduated with the degree in 1921. She later became first (in 1947) a partner in A C Morrison & Richards (Aberdeen), then senior partner of the firm before she retired at the end of 1966.
Congratulations first to the student editors of the on-line Edinburgh Student Law Review, who launched the first issue of their new product at the beginning of April 2009.
The journal, which is available through the Edinburgh Law School website, is edited by Craig Hawthorne, Paul Tominey and Keiran Wilson, ably supported by Rebecca Maslin, Rebecca Zahn, Karen Baston, Gemma Flynn, Julie Eveleigh and Clare Francis Moran. Lord Hope of Craighead provides a foreword as the new journal’s patron.
The contents of the first issue include papers on the codification of Scots property law by Carl Friedrich MacThibaut (apparently an Edinburgh LLB (Hons) graduate of 2006; the surname suggests no membership of any Scottish clan known to Scots Law News, but it is no surprise to the historically aware reader to find MacThibaut in favour generally of codification); the creation of a European Contract Code as a solution to the economic problems caused by divergent contract laws in the European Union by Andrew Bowker; the concept of personal data in data protection law by Stephen Allison; human rights in Nigeria by Rebecca Zahn; the ECHR decision on DH v Czech Republic by Alastair Stewart; and two notes by Rebecca Young and Rebecca MacLeod, on stay of proceedings in international criminal courts and personality rights respectively. The journal is thus pleasingly eclectic and anything but parochial in its coverage.
While we are in this area, we should also congratulate another student-led online law journal from Edinburgh on its fifth birthday, celebrated with an impressive two-day conference in the Playfair Library, Old College, University of Edinburgh on 30 and 31 March 2009. This is SCRIPT-ed, which specialises in Law, Technology and Society. The editors, Shawn Harmon and Wiebke Abel, showed in their conference organisation that their considerable organisational skills extend well beyond merely putting together a quarterly journal with an international set of contributors.
Scots Law News is delighted to salute both journals and the dynamic student culture which lies behind them both.
The Scottish House of Lords decision about the right to park your car on other people’s land, Moncrieff v Jamieson 2008 SC (HL) 1, has been discussed and distinguished by the Court of Appeal in Waterman v Boyle  EWCA (Civ) 115, summarised in The Times for 30 March 2009.
The dispute was between neighbours (of course). The claimants lived in a property previously owned by the defendants who had sold it while continuing to live in a neighbouring property previously part of what now belonged to the claimants. There was a common right of vehicular access, and the sale had provided that the Watermans could not park more than two private vehicles thereon. The question was whether this express right could be extended by implication from the right of vehicular access to allow further vehicles to park. The Court of Appeal held not, and that the contrary decision of the judge at first instance had been a misunderstanding of Moncrieff (given its English citation of  1 WLR 2620).
Giving the judgment of the court, Lady Justice Arden twice points out that Moncrieff was a Scottish decision but observes, citing Lords Scott and Neuberger, that it had been held that Scots law was the same as English law (paras 3 and 34). She finishes with a stern warning to neighbours and their professional advisers (paras 39, 40):
“There is a common misunderstanding that an Englishman's home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours. … While it is often true that a person can do what he wants on his own land, it is not always so. The law expects neighbours to show some give and take towards each other. The parties to this litigation should keep that point in mind for the future and now draw a line under the past. Parties to other boundary disputes and their advisers should also, at all times, have this point firmly at the forefront of their minds, and seek to resolve their disputes accordingly, and without resort to complex and expensive litigation.”
This clarion call should certainly ensure an outbreak of good neighbourliness across the land; but Lord Rodger may be worried that once again it is his fellow judges who are the people telling others not to litigate. The turkey's view of Christmas comes to mind.
That enterprising Glasgow law firm, Inksters, are claiming to be the first Scottish law firm to “twitter”.
Amongst the uses to which Inksters are putting their Twitter site is information about properties for sale, but a good deal of it at the moment is about other twitterers and bloggers mentioning Inkster’s tweets. Since Scots Law News is contemplating entry into the world of Twitter as well, we eagerly await our reciprocal plug from Inksters.
Professor Joe Thomson has intimated his resignation as a Scottish Law Commissioner with effect from the end of April 2009, while also taking up the vacant editorship of the Juridical Review.
Scots Law News wishes Professor Thomson all the best in his new role.
David Mundell MP’s Scottish Banknotes (Acceptability in United Kingdom) Bill (see previously here) had its Second Reading on 6 March 2009 but the debate was “talked out” without conclusion and is due to be resumed on 24 April.
The Bill would impose a requirement on businesses not to make a distinction between Scottish and other banknotes issued in the United Kingdom as acceptable payment for goods and services. It would give powers to the Office of Fair Trading to investigate breaches of this requirement and to issue notices of compliance. The Bill would not affect the right of a business to refuse to accept banknotes which it considered to be forgeries.
There was much merriment in the Second Reading debate about whether Mr Mundell’s Bill was a stalking horse for the Government’s “quantitative easing” policy (which means printing more banknotes to improve cash flow and thereby solve the present economic crisis – just like that), but it appears that in fact the Government does not want the Bill to pass.
Lord Malcolm made a significant contribution to understanding of how time bar rules under the Prescription and Limitation (Scotland) Act 1973 operate in claims based upon allegations of historical physical and sexual abuse at residential schools in two decisions issued on 5 and 12 March 2009.
The claims related to abuse of children carried out at Kerelaw School in the 1990s. Actions were not raised in respect of this until 2007, and the question was whether this meant the actions were time-barred under the limitation rules in the 1973 Act, or whether the court might exercise its equitable discretion to extend time under section 19A. Lord Malcolm focused, not on the equitable discretion, but on the specific provision in section 17 of the Act that time starts to run once it is “reasonably practicable” for the pursuer to be aware that the injuries in question were sufficiently serious to justify legal action against a known defender. In holding that the issues should go to proof, Lord Malcolm says (at para 32 of his opinion in CG v Glasgow City Council  CSOH 34):
“No doubt from the outset the pursuer in the present action knew that she had been abused. However, she offers to prove that at that time, and thereafter, she failed to appreciate that her experiences justified seeking advice as to litigation with a view to compensation. In a case of historic sexual abuse the issues of actual awareness that the injuries were sufficiently serious to justify proceedings and the reasonable practicability of acquiring such knowledge at an earlier date may well become intertwined. It is I think widely understood that young people who suffer this form of ill treatment on a regular basis can come to regard it as almost part and parcel of their way of life, and that it can have devastating consequences thereafter which may make it difficult for them to appreciate or discover the significance of what had been done to them The pursuer offers to prove that until 2004 nothing occurred to prompt an alteration in her attitude to what had happened, nor in her awareness or potential awareness as to the legal possibilities. I have recounted the lengthy and detailed averments made by the pursuer. I consider that they are such as to make it very difficult to accept the invitation to exclude the pursuers case under section 17 simply from a consideration of her pleadings.”
The second case, MW v Glasgow City Council  CSOH 37, simply reaffirms these comments in reaching the same decision allowing the case to go to a full proof.
The Shetland News reported on 12 March 2009 the renewed prospect of a court debate about the status of Scots law in the islands at the instigation of Stuart Hill, aka Captain Calamity.
It appears that Shetland Islands Council wants council tax from Mr Hill for his hut on Forewick Holm in Papa Sound (the island being re-named Forvik by Mr Hill when he declared its independence from the United Kingdom in 2008). Mr Hill has naturally refused the demand and is looking forward to meeting the Council in court, when he will renew his argument that Shetland is not part of Scotland and that the Scottish courts have no jurisdiction in the islands. For comment on this argument, see previously here.
Further developments are awaited with interest.