Meeting of the Parliament 27 June 2018
In a debate of this nature, it may seem that my right to say anything interesting by this stage has been extinguished by prescription. Let me start by mentioning my entry in the register of interests as a practising advocate.
Prescription might seem to be a boring lawyer’s topic—those lawyers with their pedantic pronunciations. It is, of course, an ancient topic known to legal systems the world over, and it hardly needs to be mentioned that the Romans with their usucapio and other rules were the basis of much of present-day European thinking on the matter.
When I was at Heidelberg University, I remember a professor teaching us about the subject and telling a story to illustrate its meaning. He told of purchasing a bottle as a student—I will let others guess what was in it. He gave only a receipt to the shopkeeper and did not actually pay for it at that stage. As a student, he thought what a convenient arrangement that was. However, he said, it would not be convenient if, more than 40 years later, the shopkeeper came calling and demanded payment of the bill for that bottle. The professor’s point was simply this: an agreement should not be left as if forgotten and forgiven, only to be trundled out years later and a demand presented, when circumstances, situations and even fortunes might have completely changed.
Eleanor Roosevelt once said:
“Justice cannot be for one side alone, but must be for both.”
Prescription is about that balance of justice, which seeks to be fair to both parties. It sets a limit to the time beyond which a right cannot be relied upon—in vox pop, “use it or lose it”. Those are well established and widely accepted principles in the legal systems of the world, past, present and—one would hope—future.
As the professor’s illustration indicates, the question of prescription is one that applies across a wide breadth of human life and experience. I did a short trawl through Scottish case law of the past couple of centuries. A huge number of issues were covered, ranging from salmon fishing rights to boundary disputes to every other conceivable form of commerce. I certainly will not bore the Parliament with a tale of each and every one of those cases.
However, the subject even featured in a case relating to the interpretation of the Temperance (Scotland) Act 1913—the case of Macfarlane v Lanarkshire County Council of 1921, which is Session Cases 664. The case related to a poll conducted and the question of whether it had taken place on a market day, which would have been prohibited under the act. The Lord President commented:
“to shut all licensed premises in the area on the day of a poll which is concerned with a question of licensing policy is an intelligible precaution against influence; while to shut them on a market day is to cause needless inconvenience and annoyance. The Act of Parliament is framed in view of both these considerations.”