SCOTS LAW (EUROPEAN COMMUNITY LEGISLATION) (Hansard, 20 December 1976)

The Lord Advocate

Yes. Last year I had a very full discussion on this matter with the late Dr. Much, then Director-General of the Legal Service of the European Commission, as a result of which I am satisfied that the commission is fully aware of the separate nature of the Scottish legal system and is anxious to take account of Scots law in preparing proposals for EEC legislation and in discharging its other functions.

The anxieties which I expressed in conversation with Dr. Much, and the assurances which I received from him, have more recently been put on record in an exchange of letters between Sir Donald Maitland, the United Kingdom Permanent Representative to the European Communities, and Mr. Giancarlo Olmi, acting Director-General of the Legal Service of the Commission of the European Communities. The text of these letters, which are published in the current issue of the Bulletin of the European Communities (No. 10 of 1976), is as follows: Letter from the United Kingdom Permanent Representative to the European Communities to the Acting Director-General of the Legal Service of the Commission, of 17th May 1976: You may recall that in January of last year the Lord Advocate, the Rt. Hon. Ronald King Murray QC MP, in the course of a visit to Brussels had the pleasure of meeting the 2W late Dr. Much, then Director-General of the Legal Service of the Commission, and had with him a very friendly and constructive discussion about matters of mutual interest. The Lord Advocate was most grateful to Dr. Much for the care with which he considered the points made to him and the reassurance which he gave. One of the subjects raised by the Lord Advocate with Dr. Much was one with regard to which, as Senior Scottish Law Officer, he had for some time felt a certain anxiety. Put briefly, this arose out of the juridical position existing in the UK and, in particular, the fact that Scotland, although an integral part of the UK has her own autonomous legal system and her own law. The Lord Advocate's concern was that the separate nature of Scots law and the Scottish legal system should he appreciated by the Commission and taken into account by it and its services in framing Community secondary legislation and in discharging their other functions. Apart from his concern about the appreciation of the legal position in the UK by the services of the Commission, the Lord Advocate also feels that there may be a danger that the situation in the UK is not fully understood outside official circles in other Member States. If this is so it could be a source of misunderstanding and confusion especially in commercial transactions, a result which I am sure we would all wish to avoid. Thus a trader or a consumer in another Member State might possibly be misled by the frequent references to 'national law' in the Community Treaties and other documents into believing that, in respect of the United Kingdom, the 'national law' was the law of England. This, of course, is not the case. There are in the United Kingdom three separate and independent jurisdictions, of which Scotland is one, and Scotland possesses her own legal system, which is entirely separate from, and independent of, those existing in England and Northern Ireland. The 'national' law applicable in Scotland is accordingly the law of Scotland, not the law of England, and it is administered by Scottish, and not English, courts. Nor is this merely an academic matter. Scots law differs widely from English law in many important respects. Thus (to take one instance) the land law of Scotland is completely different from that of England, and even in the sphere of trade and commerce there are very significant differences between the two systems—for example, in the general law of contract and in the law of bankruptcy. It would, therefore, be most unfortunate if a businessman in another Member State engaged in a commercial transaction in Scotland in the mistaken belief that the applicable law was the law of England. It is this consideration which has given rise to the Lord Advocate's anxiety. He appreciates that traders and others in the Community have legal advice of a very high quality available to them. Nevertheless he is concerned lest any should be misled by, for 3W example, Community terminology and references to 'national law' and, perhaps, suffer loss as a result of an imperfect understanding of the legal systems which co-exist in the United Kingdom. Regarding the first of the problems outlined above, namely the account which requires to be taken of the existence of the Scottish legal system in Community legislation and the general administrative work of the Commission's services, the Lord Advocate understood that this was not likely to give rise to undue difficulty. As a result of his interview with Dr. Much, the Lord Advocate is confident that the Commission—and in particular its Legal Service—are fully aware of the distinct nature of the law of Scotland and conversant with its basic principles. This is evident from certain Community texts, which as appropriate use language reflecting differences between Scots law and the systems obtaining in other parts of the United Kingdom. The Lord Advocate ventures to hope that the practice of using such language in Community documents, where appropriate, will be strongly encouraged. He would, however, greatly value your views on the question of how knowledge of the juridical position in the United Kingdom, as I have outlined it above, could be more widely disseminated in the other Member States and, more particularly, brought to the notice of Community nationals whose interests are liable to be affected, and perhaps prejudiced, by the kind of misunderstanding to which I have referred earlier in this letter. Letter from the Acting Director-General of the Commission Legal Service to the United Kingdom Permanent Representative to the European Communities of 31st May 1976: Many thanks for your letter of the 17th May, 1976. The visit of the Lord Advocate, the Hon. Ronald King Murray, Q.C., MP, was greatly appreciated by Dr. Much. Albeit that, of course, the Commission, and in particular its Legal Service, was already aware of the legal position in the United Kingdom in that it comprises three separate and distinct jurisdictions, Dr. Much found it very useful to have first hand information from the Senior Scottish Law Officer on particular aspects of the Scottish legal system and to hear from him of the special requirements to which this gives rise in the Community context. Dr. Much was able during the course of his meeting with the Lord Advocate to assure Mr. King Murray that, as the occasion arises, both in their advisory capacity on administrative questions and in so far as they are involved in the legislative process, the members of the Legal Service take great care to ensure that the needs of all legal systems within the Community are fully taken into account, and that such advices as are rendered on administrative questions, and in the course of the preparation of legislation, fully reflect and accommodate the diverse nature of the differing legal traditions which exist in the Communities. In this respect, the almost unique position occupied by Scots law as being to a considerable extent a civil law system in the common law world, is by no means overlooked. As, of course, you know, the Legal 4W Service is not in general the originating department for most Community Secondary legislation. This responsibility lies mostly with the relevant Directorate-General. However, the legal adviser responsible for advising that Directorate-General in each case ensures that should a question arise which necessitates special treatment for Scotland, or indeed for any other legal system, this aspect is not overlooked. I am happy to be able to confirm that the above administrative practices of which the Lord Advocate was informed orally are, and shall continue to be, the standard practice within the services of the Commission. I am, therefore, confident that the Lord Advocate can rest assured on these points. As far as the second problem which you raise is concerned, namely the confusion which undoubtedly exists outside the United Kingdom regarding the meaning of the term "national" law" in relation to the United Kingdom, in so far as such confusion may stem in any degree from language used in the Treaties or their secondary legislation, coupled with the undoubted prevailing view as to the meaning of this term in relation to the United Kingdom, I would agree that all possible steps should be taken to remove these misapprenhensions. The problem may be one in the resolution of which the Commission can be of some assistance as far as matters which are within its competence are concerned. But, of course, the problem is perhaps also one for the resolution of which considerable responsibility must rest with Her Majesty's Government. As such, it would perhaps be out of place for us to make suggestions as to how, for your part, you might proceed. However, it may be that in specific circumstances and in matters within the Commission's competence, the services of the Commission can be of some assistance to you in this area. Thus, for example, questions are not infrequently asked in the European Parliament which necessitate answers which refer to the "national" law of some particular state. Again, reports and explanatory memoranda prepared for publication or for submission to the European Parliament or the other Community institutions may contain similar references. I can assure you that we shall do our best to ensure that where requisite such references to the United Kingdom will not give rise to any misunderstanding as to the meaning to be attached to the notion of "national" law in so far as the United Kingdom is concerned. The services of the Commission, as part of their ongoing process of contacts with the legal professions in the Member States, have already had the pleasure of two visits from the Law Society of Scotland. Such visits are greatly appreciated by the services of the Commission since it gives them a chance to meet at first hand the members of the various legal professions and to hear from them the problems which arise in relation to Community law in their legal systems. It only remains for me to say that the services of the Commission and the Legal Service in particular will be very pleased in the future, as they have been in the past, to give you whatever assistance they can in the resolution of any problems which arise in the general sphere under discussion.