Will Michael Russell defend our right to use the law of Scotland?

However, the Scottish Government really needs to look at this in a wider context. Devolution is a very important part of Scots law. It enables our parliament to legislate within all but reserved powers as well as a host of administrative functions.

That Scots law both common and legislative was able to survive and even prosper and remain relevant from 1707 until 1999 without its own parliament says much for its sophistication, deductive principles and the innovation of our pre-Union parliamentarians as well as the intellectual rigour and common sense of our legal professions and judiciary.

Devolution was created in part to protect and enhance our legal system with more time to reform and reflect changes in our society’s values. It is sad to see that the Unionists attack our parliament, but, if the truth be told, both Scots private and public law is under greater attack now than at any time since 1707, and the fault for that lies rather closer to home than Westminster.

READ MORE: Michael Russell: Tories’ devious trick to disable devolution

In the early 1990s I received a renewal notice for my home insurance from the General Accident, whose global headquarters were in Perth. It was one of the largest general insurers in the UK. In terms of the EU Third Insurance Directive, insurers had to disclose in the policy conditions the governing law of the contract in the event of a legal dispute between the policy holder and the insurance company.

To my surprise I discovered that despite my home being in Scotland, the policy was to be governed by English and Welsh law. I challenged the GA, who replied that it was an “administrative convenience” that all UK home insurance policies were governed by English and Welsh law wherever the property was in the UK.

I immediately brought the matter to the attention of Alex Salmond, and thanks to his intervention the GA changed its policy within weeks. Now most home insurers offer Scots law as the governing law of home insurance policies for Scots properties.

Fast forward to 2016 and I was looking though a commercial contract from a Scottish-based office supplier when I noticed that the contract was governed by English and Welsh law. I queried this and was told by the supplier that this was the first time that this term of its contract had been challenged. To secure the business it changed the contract to Scots law.

Thereafter I became a bit of a thorn in the flesh of contractors, none of whom had been challenged before in their adherence to English and Welsh law when contracting in Scotland. To secure the contracts they changed to Scots law.

I wrote to the SNP’s Westminster consumer spokesperson to see if the party would promote legislation requiring that all consumer contracts involving Scots residents and businesses contained the option that the contracts be governed by Scots law.

I thought I was pushing at an open door, but sadly there was a basic failure by some of the SNP parliamentarians to understand that Scots law exists not just in devolved areas but also in reserved areas. In some, but not all, reserved areas Scots law and English and Welsh law may be similar but they are interpreted by the Scots and English courts according to their own traditions.

I then thought I’d ask the Law Society of Scotland, which regulates the right of solicitors to practice in Scotland and promotes Scots law and the profession, if it insisted that all contracts it entered into were governed by Scots law. It declined to answer the question but defended its position as a supporter of Scots law, its reform and the Scottish legal profession.

I recently received a message from the Society which could only be opened by registering my details with an encryption supplier. When I asked the Society which law governed its contract with the supplier I was told, without any shame, English and Welsh law.

Earlier this year I made a Freedom of Information request to the Scottish Government enquiring if it insisted that all contracts entered into by the government, its agencies, and any organisation or individual, including local authorities who receive financial support from it, are governed by the Law of Scotland.

The answer was that it didn’t keep a register of the governing law of contracts it or its agencies entered into, nor was it aware if local authorities had such registers. Furthermore it imposed no requirement that any contracts by receivers of Scottish Government support should be governed by Scots law. The government spokesperson did say that its standard terms for suppliers to the Scottish Government should be governed by Scots law. It gave no assurance that this is a requirement which is checked in every case.

Now you maybe wondering why all the fuss?

First of all, the amount of money the Scottish Government and its agencies spend each year involves thousands of contracts, from the supply of telephone systems to big-ticket items including aid to attract foreign investments. In addition, the grant and loan aid it provides to councils, private individuals and small and large global businesses generates exponentially far more. The total runs to several billion of pounds sterling. If that business is not governed by the Law of Scotland then a sector which comprises tens of thousands of Scots lawyers and their staff loses the potential business of not just drafting these contracts but also the opportunity to defend Scots consumers in the event of legal dispute.

Secondly, in recent years several of the largest Scottish-owned commercial legal firms in Scotland have disappeared. Some have gone to the wall but more have been absorbed into other legal firms from outwith Scotland, including many English-based legal firms. As a result these firms' Scottish offices, where they continue to exist, are little more than post boxes, and the lucrative legal bits go down south. If all aspects of Scots law ceases to be practised here to any meaningful extent, we lose the expertise, and invariably the cost to us of defending our rights will increase.

Examples of consumer and business contracts which are governed by English and Welsh law which most Scots enter are: mobile phones, credit sale and hire purchase agreements, holiday and travel agreements, postal and delivery services including food deliveries, and all sorts of office and business supplies. Some give Scots law as an option but the majority do not do so.

This is not about Scots law being better than another system of law. It is about the right of the citizen of a nation which has its own sophisticated system of law having the right to be governed by that law in any contract he or she enters into on its soil. How sad therefore that not only are Scots denied the right to use the law of Scotland, but our government, despite its position as the steward of Scots Law, has given no thought to Scots law as the governing law of all its activities.

What is even sadder is that no primary legislation is required through the Scots Parliament to make this happen. All that is required is for the Scottish Cabinet to instruct all its departments that Scots law must be the governing law of all contracts where public funds, however small or large, are used.

I hope Michael Russell reads this and accepts that no self-respecting nation should tolerate that the law of another nation is imposed upon its people’s right to contract by the ignorance or carelessness of its government. I’m sure the Irish and Maltese governments wouldn’t get away with accepting contracts governed by the laws of another jurisdiction.

The right of a citizen to contract under his/her own nation’s law is as great an issue of constitutional law as the Scotland Act even if most folk, including some of those in government, are blissfully unaware of the immediate and long-term consequences of not checking the small print.

Graeme McCormick
Arden