Fishing in troubled waters

Scots Law News is always interested by Anglo-Scottish cross-border issues (see previously here and here), but was especially fascinated by the latest episode concerning fishings on the River Esk, reported by the BBC on 29 August 2010.

The source of conflict seems to be the responsibility of the Environment Agency (a body that generally has no jurisdiction in Scotland) for the River Esk, which flows mainly but not entirely to the north of the Scotland-England border, and emerges into the Solway Firth on the Cumbrian side of the border.  The Agency interprets this as entitling it to regulate fishings on the entire river system and to require licences for those who would fish the waters for salmon or sea trout.

This is however disputed by those fishing the river in Scotland, and now the position is to be tested in Jedburgh Sheriff Court, where two men from Newcastleton are to be prosecuted for unlicensed rod-fishing on the Liddle Water (a tributary of the Esk).  Their defence will be to challenge the legitimacy of the Agency's regulations.  The case begins before Sheriff Kevin Drummond on 10 September.  We will be watching eagerly for further news.

The rivers on the border might be described as a p-Esk-y problem for Anglo-Scottish legal relations, since they have been causing issues over where Scotland ends and England begins (or vice versa) for centuries.  See this writer's learned article in (1991) 22 Law Librarian 85-93 for thirteenth-century fishing disputes on the Tweed, and the following cases, conveniently summarised by the late great Professor W A Wilson in his Introductory Essays on Scots Law (2nd edn, 1984), p.35:  Duke of Roxburgh v Earls of Home and Tankerville (1768) Mor 14272; 2 Paton 358 (Tweed fishings);  Coutts v Blake (1775) Mor 7375 (island in the Tweed); Annandale and Eskdale DC v North West Water Authority 1978 SC 187 (the fluctuating Eden and the Solway Firth).

The Bible in Scots law

Only with the greatest hesitancy does Scots Law News enter into the discussion of Lord Mackay of Clashfern's support for the Scottish Bible Society's leaflet on "The Bible in Scots Law" and its statement that the Bible is a "foundational source book for Scotland's legal system".

The text of the leaflet has been helpfully made available on the Internet by our blogging colleague, the Lallands Peat Worrier.  From a historical point of view, there can be no doubt that the Bible has played a role in the shaping of Western law in general, in particular canon law, and that from there it has gone on to be influential in the development of other legal systems, including Scots law.  The pamphlet is right to say that the "institutional writers [were] informed by Roman and biblical law for civil law and by biblical law for criminal law".  Who can forget Lord Cooper's famous characterisation of Scots law as expounded by Stair? – "an original amalgam of Roman Law, Feudal Law  and native customary law, systematised by resort to the law of nature and the Bible, and illuminated by many flashes of ideal metaphysic."

Yet there are some puzzles about the pamphlet.  It gives a long list of scriptural citations to illustrate themes of relevance to justice in 21st-century Scotland (exhaustively and critically analysed, incidentally, by the Lallands Peat Worrier), but there is a heavy preponderance of Old Testament over New.  Nor is there any mention of surely the most famous of all modern judicial references to the Bible (of which your correspondent was reminded by reading Elspeth Reid's account of the case in the recently published Scots Law Tales), the church-going Lord Atkin's deployment of the Parable of the Good Samaritan (Luke 10:29-37 and, note, New Testament) as a prelude to his definition of the duty of care in negligence in Donoghue v Stevenson.

Perhaps, however, this omission is because Lord Atkin was careful to avoid a literal reading of the command to love his neighbour in determining the legal test he sought to formulate.  He could well see the difficulties which even such a seemingly attractive proposition might make if transformed into a legal rule.  And surely this is the right approach: to see in the Bible a potential sources of principles for the governance of human relations which has undoubtedly had (and probably continues to have, directly or indirectly) considerable influence in our society, but one that goes alongside many others, probably increasingly so in our multi-cultural and sceptical world, and must be treated with circumspection, critical thought and awareness that much of its content is informed by the ideas and values of times completely different from our own. 

Some late summer reading

Scots Law News hasn't made a practice of carrying book reviews, and this post isn't intended to start one; but two books that recently crossed your correspondent's desk were sufficiently out of the ordinary run to seem to call for comment.

One is a biography of Lord Justice Clerk Macdonald (1836-1919), whom we had cause to note in 2008 when his S1 car number plate – the first such plate in Edinburgh – was sold at auction for nearly £400,000.  The biography, simply entitled Sir John Macdonald Lord Kingsburgh (ISBN 978-0-9566149-0-2), is written by the subject's great-grandson, Norman Macdonald, who is a retired WS.  The book retails for an extremely modest £7.99.  It tells a fascinating tale in a clear straightforward way, and with frequent quotation, not only from its subject's own fascinating memoir, Life Jottings of an Old Edinburgh Citizen (1915), but from his many other writings and political speeches.  Macdonald was no jurist, except perhaps in criminal law, but he was otherwise a polymath with a special interest in technology who, had he lived today, would undoubtedly be an enthusiastic blogger and social networker if not a hacker.  He was also a Tory Lord Advocate at the time of the Highland land troubles of the 1880s, and a number of chapters are devoted to his involvement in resolute defence of the status quo of landownership in the Highlands and support of emigration as the solution to the problem of crofters and the landless poor.  Yet his own Highland background left him with some sympathy for the plight of these groups, and led to a refusal of support for some of the extremes to which the local forces of law and order went in order to suppress their insurrectionary behaviour. 

Another interesting dimension which could perhaps have received more attention is his leading position in the Catholic Apostolic Church, an Irvingite sect of which Macdonald's father was a founding member of the Edinburgh branch.  Our Macdonald became first an Archdeacon then an Archangel in the church, the Edinburgh base of which was the church in the Broughton area now known as the Mansfield Traquair Centre.  The famous Phoebe Traquair murals inside the church were put there under Macdonald's close supervision.  It was from the Mansfield church that Macdonald's massive funeral procession began in 1919, before his interment at St Cuthbert's churchyard at the West End; there is a picture in the book (among a number of other illustrations) showing the procession setting off.  But, as Norman Macdonald says, his ancestor wrote nothing about his faith, and so we can only speculate as to how it affected his life and actions – for example, the horror of the death penalty which was so striking in a Tory Lord Advocate and judge of the Victorian era.

One other fascinating detail in this little gem of a book: Macdonald's Criminal Law, first published in 1867, was intended to be an up-date and condensation of Hume's Commentaries on the subject.  Macdonald had family connections to Hume through his step-mother, his father's third wife having been Agnes Hume of Ninewells, daughter of the former Professor of Scots Law at Edinburgh University, and grand-niece of the even greater philosopher.  Macdonald inherited from this connection the original MSS of Hume's then-unpublished lectures on Scots law, and apparently began but never finished a transcription.  He eventually presented both MS and incomplete transcript to the Advocates Library.  Although Norman Macdonald does not mention it, this MS became the basis for the late Campbell Paton's edition of Hume's Lectures, published by the Stair Society between 1939 and 1958; but what your correspondent has not found in Paton's commentary is what Norman Macdonald says, viz that the introductory chapter in Book 1 of the Lectures is missing from the MS and is only known from the Macdonald transcript. 

The other unusual work with which your correspondent has been beguiling some of his leisure hours is Scots Law Tales, edited by John Grant and Elaine Sutherland and published by Dundee University Press (ISBN 978-1-84586-067-7).  This is a collection of pieces by different hands on various leading cases of the last one hundred years, putting their stories into a wider context than their status as legal precedents, whether through discussion of the personalities involved or the social and political settings of the case facts.  From Lord Justice Clerk Macdonald's era come the McCaig and Oscar Slater cases, while from the middle of the twentieth century we of course have Donoghue v Stevenson, MacCormick v Lord Advocate and the St Ninian's Isle treasure case.  The balance leans, however, towards modern times with the remaining six tales being about cases decided since 1980, including the Campbell and Cosans v UK (the corporal punishment case), the Orkney children case, Law Hospital NHS Trust v Lord Advocate (turning off the life support machine), McFarlane v Tayside Health Board (right to damages for birth of a healthy child) and Sheridan v News International (trenchant views from Alistair Bonnington on the greatest defamation action of them all). 

Last but by no means least is John Grant's elegant and penetrating account of the Lockerbie case, completed before this summer's brouhaha on the subject from the US Senate began.  Professor Grant's view of the trial itself is summarised in his title: "Not our finest hour."  Like your correspondent, he is also puzzled by Megrahi's decision to drop his appeal, given that he continued to maintain his innocence and could have gone on doing so in court even after the compassionate release of August 2009.  Professor Grant also comments: "Decisions about compassionate release made by politicians alone are clearly problematic, however well intentioned and well advised the politician may be. … As befits politicians, concern about Megrahi's return to Libya has focused exclusively on the politics of the return decision, and not on whether Megrahi's conviction is sound or what actually happened prior to the awful events of 21 December 1988."  Unlike so much else said and written recently about the Lockerbie case, this tale is one that is well worth reading.