Act of Sederunt

The Court of Session—more accurately the College of Justice—was established by the Parliament of Scotland under James V in 1532. The Act of Parliament establishing the Court, later named the College of Justice Act 1532, provided that the Court would have "such [...] rules and statutes as shall please the king's grace to make and give to them" and "ordain[ed] the same to have effect in all points and [that the] processes, sentences and decreets shall have the same strength, force and effect as the decreets of the lords of session had in all times bygone." That is, that the rules of the Court of Session were to be made by the King and to have the same force as the decrees of the Lords of Session had before.[8][9]

Although established in 1532, it wasn't until the passing of the College of Justice Act 1540 (originally titled Ratification of the institution of the college of justice) that the Court of Session gained the power to make law through Acts of Sederunt. The Act granted the Lord President, the Vice-President, and the Senators of the College of Justice the "power to make such acts, statutes and ordinance as they shall think expedient for ordering of processes and the hasty expedition of justice."[10]

The Courts Act 1672 (originally Act concerning the regulation of the judicatories) created the High Court of Justiciary, the supreme criminal court of Scotland, by attaching five of the Lords of Session to the Lord Justice General and Lord Justice Clerk. The Courts Act also provided that "the judges of that court [...] regulate the inferior officers thereof, and order every other thing concerning the said court," and so created the distinction between Acts of Sederunt and Acts of Adjournal which continues to exist to this day.[11][12]

Following a 19th-century reforming of the High Court of Justiciary, all Lords of Session were ex officio Lords Commissioners of Justiciary, instead of the original five ordained by the Courts Act.[13]^{:[s. 44]} Although that reformation was repealed, its effect was replicated by the Criminal Procedure (Scotland) Act 1995, which provided that the Lord President of the Court of Session was also to hold the office of Lord Justice General.[14]^{:[s. 1]}

The powers of the Court of Session to make Acts of Sederunt were partially consolidated by the Administration of Justice (Scotland) Act 1933, which also made significant changes to the structure and operations of the Court. One of these significant changes was the establishing of a Rules Council, composed of the Lord President as well as Court of Session judges and practising lawyers, to propose Acts of Sederunt to the Court. The Act also created a Sheriff Court Rules Council, to carry out the same functions but in relation to the sheriff courts.[15]^{:[ss. 18, 35]}

The Sheriff Courts (Scotland) Act 1971 enabled the Court of Session to regulate the sheriff courts and Sheriff Appeal Court when they heard civil matters. The Act also dissolved the Sheriff Court Rules Council created by the Administration of Justice (Scotland) Act 1933, and created a new Sheriff Court Rules Council to continually review sheriff court procedure and submit to the Court of Session draft Acts of Sederunt for regulating sheriff courts.[16]^{:[ss. 33–34]}

The Court of Session Act 1988 was another consolidating Act, now with sections relating to Acts of Sederunt largely repealed or modified by the Courts Reform (Scotland) Act 2014, that also altered the structure of the Court of Session. The remaining powers to make Acts of Sederunt relate to summary trials—although the actual power is now derived from the Courts Reform (Scotland) Act 2014—and the considering of applications to appeal to the Inner House by a single judge.[17]^{:[ss. 26, 31A]}

The Court of Session Rules Council and Sheriff Court Rules Council were dissolved by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, which established the Scottish Civil Justice Council as their replacement. Originally, the Council's only function in relation to Acts of Sederunt was to prepare draft civil procedure rules for the Court of Session and sheriff courts, but this was expanded by the Courts Reform (Scotland) Act 2014 to include preparing draft procedural rules for the Sheriff Appeal Court and draft fees rules, and by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 to include draft inquiry procedure rules.[5]^{:[s. 2]}[4]^{:[Sch. 5 paras. 18, 31]}[18]^{:[Sch. 1 para. 1]}

The majority of the Court of Session's current power to regulate is derived from the Courts Reform (Scotland) Act 2014, which consolidated many of the existing powers and, in conjunction with the Tribunals (Scotland) Act 2014, extended the power of the Court of Session to enable the Court to make rules for tribunals.[19]^{:[s. 68]}[4]

The Court of Session's power to create Acts of Sederunt was extended by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 to include the power to regulate the practice and procedure of public inquiries and fatal accident inquiries.[18]^{:[s. 36]}

Rules for the functioning of the Court of Session are developed by the Scottish Civil Justice Council, which was established by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013. The Council prepares draft rules of procedure for the civil courts and advises the Lord President on the development of the civil justice system in Scotland. The SCJC will consider changes to practice and procedure in response to policy initiatives, by specific request, or of its own accord.[5][25]

Membership of the Council is provided for in the 2013 Act. The Council is chaired by the Lord President, Lord Gill, and membership includes:

• The Chief Executive of the Scottish Courts and Tribunals Service (Eric McQueen)
• The Chief Executive of the Scottish Legal Aid Board (Lindsay Montgomery CBE)
• One member of Scottish Government staff (Jan Marshall)
• At least four members of the judiciary, including at least one judge of the Court of Session and at least one sheriff principal or sheriff (Rt. Hon. Lord Menzies, Rt. Hon Lord Tyre, Sheriff Principal Mhairi M. Stephen and Sheriff Ian R Abercrombie QC)
• At least two practicing advocates (James Wolffe QC and Sarah Wolffe QC)
• At least two practicing solicitors (Eric Baijal and Duncan Murray)
• At least two consumer representative members (Ian Maxwell, Families Need Fathers and Lauren Wood, Citizens Advice Scotland)
• Up to six LP members (Employment Judge Joseph d'Inverno and Professor Fances Wasoff, University of Edinburgh).

Rules for the functioning of civil procedure in the sheriff courts are also prepared by the Scottish Civil Justice Council.