SCHEDULE 8, Paragraph 2: Crown Suits (Scotland) Act 1857
Purpose and Effect
This paragraph makes amendments to the Crown Suits (Scotland) Act 1857 consequential to the establishment of the Scottish Administration and of the post of Advocate General for Scotland. It amends the 1857 Act to enable actions by or against the Scottish Administration to run in the name of the Lord Advocate while actions by or against the UK Government may be brought by or against the Advocate General.
General
The Crown Suits (Scotland) Act 1857 regulates the institution of suits at the instance of, and against, the Crown and public Departments in the Scottish courts. In particular it provides that every action, suit, or proceeding to be instituted in Scotland on the behalf of or against Her Majesty, or in the interest of the Crown, or on behalf of or against any public department, may be lawfully raised in the name and at the instance of or directed against Her Majesty's Advocate for the time being as acting under the 1857 Act, provided always, that before instituting or defending any such action, suit, or proceeding, Her Majesty's Advocate shall have the authority of Her Majesty or of the public department respectively on whose behalf or against whom such action, suit, or proceeding shall be instituted, to the institution or defence thereof.
The modifications listed in paragraph 2 of Schedule 8 add the Scottish Administration to the references to the Crown and public departments as appropriate, to extend the application of the 1857 Act to every action, suit or proceeding to be instituted in Scotland on behalf of or against the Scottish Administration. They further amend references to “Her Majesty’s Advocate” to refer instead to “the appropriate Law Officer” and insert a definition of “appropriate Law Officer” to mean:
the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration; and
the Advocate General for Scotland, in any other case.
Details of Provisions
Paragraph 2(1) provides that the Crown Suits (Scotland) Act 1857 shall be amended.
Paragraph 2(2) provides that in section 1 (Crown Suits may be brought by or against the Lord Advocate):
after “Crown” there is inserted “(including the Scottish Administration)”, and
for “Her Majesty’s Advocate for the time being” there is substituted “the appropriate Law Officer”.
Paragraph 2(3) provides that in section 2 (authority of Crown required):
for “Her Majesty’s Advocate” there is substituted “the appropriate Law Officer”; and
after “Majesty” there is inserted “of the part of the Scottish Administration”.
Paragraph 2(4) provides that in section 3 (absence of authority cannot be founded upon):
for “Her Majesty’s Advocate” there is substituted “the appropriate Law Officer”.
Paragraph 2(5) inserts into the 1857 Act a new section 4A which provides that in the 1857 Act, “the appropriate Law Officer” means:
the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration; and
the Advocate General for Scotland, in any other case.
Paragraph 2(6) provides that in section 5 of the 1857 Act (change of Lord Advocate not to affect proceedings):
for “Her Majesty’s Advocate” there is substituted “the Lord Advocate or the Advocate General for Scotland”; and
for “the office of Her Majesty’s Advocate” there is substituted “that office”.
See also the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), which includes transitional provisions relating to these amendments.