The last several years have seen an increased interest in self-represented litigants in the civil courts, known in Scotland as “party litigants.” Following legal aid reforms in England and Wales, the number of self-representing litigants in that jurisdiction has risen significantly, and many believe that the number of party litigants in Scotland is increasing as well. Views on self-representing litigants can be divisive: some are deeply concerned for their access to justice in a system of courts primarily designed for lawyers, while others view them as a nuisance causing unnecessary delay and expense. On both sides of this spectrum, indications of an increase in the number of party litigants in the courts is cause for concern. However, although an entire chapter of the report of the Scottish Civil Courts Review was devoted to party litigants, there has been a lack of research and little is known about self-representation in Scotland. This thesis makes an original contribution to the knowledge in this area by offering a survey of Scots law as it relates to the party litigant and an insight into how the law functions in practice. Traditional legal research was conducted to establish what the law and rules of court say (and do not say) to assist or regulate party litigants in the civil court process, as well as how judges exercise their discretion in relation to party litigants. Empirical research was also carried out in the form of interviews with judges, solicitors and court staff, as well as court observation, and the thesis considers how the law and rules are applied in practice and both how the civil court process challenges party litigants and how party litigants can disrupt the typical operation of the process. Other aspects of self-representation, including the role of the judge and the adversarial nature of the process, along with the potential impact of self-representation on represented parties involved in cases with party litigants, are also discussed. Finally, a number of conclusions are offered as to the present state of self-representation in the civil courts and the relationship between the law in principle and the law in practice.

This thesis examines a range of issues concerning legal rights implementation in the field of Scottish housing law. This examination comprises three principle themes: firstly, an evaluation of the broad range of factors that can affect the implementation of legal rights. These factors are gleaned from an extensive literature review. Secondly, a critical analysis of key factors that affect the implementation of rights in respect of two Scottish councils, including assessment of the implementation of a select cluster of legal rights. Thirdly, drawing conclusions that identify the key factors pertinent to rights implementation. Legal developments in the field of housing have been diverse. But there has been little systematic study in the housing field of those factors that affect the implementation of legal rights. The thesis considers these factors in detail and reveals a complicated nexus of inter-relating elements that either contribute to or inhibit effective rights implementation. Political and ideological influences are shown to be significant, as is the influence of the legal process itself. But paramount in explaining rights implementation is the complex relationship that exists between council landlords and their tenants. Tenants, as key players in deciding to exercise their rights, often fail to do so; while landlords, charged by Central Government with the administrative task of implementing legal provisions, can be remiss in accomplishing their legal duties as a result of various organisational deficiencies. Organisational systems theory is applied to identify key organisational elements that are critical to ensure effective rights implementation. These elements are analysed in detail in the fieldwork that evaluates the organisational practices of two Scottish councils; this fieldwork incorporates analysis of implementation of four specific legal housing rights. Findings suggest that rights implementation is often ineffective, this failing attributable to a number of specific organisational deficiencies that include dearth of strategic planning, inadequacy of policy and procedural documentation, inappropriate work practices including lack of relevant performance indicators, ineffective communication systems and, crucially, under-developed training programmes for housing staff.

The aim of this thesis is to demonstrate how my research promotes knowledge exchange about my overarching research theme: the rights, status and capacity of distinct categories of individuals in underdeveloped and emerging areas of law. These categories include disempowered individuals (namely young people and transsexuals) and persons of reduced or questionable legal capacity (to date, children and disabled people). The thesis is in two parts. Part 1 (Volume I) is a reflective commentary and Part 2 (Volume II) comprises the published work submitted. In the reflective commentary, my published work is critically appraised and placed within a wider legal and thematic framework. My overarching research theme is summarised and evaluated with reference to the legal premises, methodology and the research outcomes of my published work. In particular, I present a critical reflection of eight of my publications, each of which is concerned with the impact of the law, and issues surrounding legal reform, upon the young and certain disempowered adults. I demonstrate that this body of work forms a contribution to interdisciplinary sharing of novel and meaningful research outputs both (i) within the academic arena and (ii) throughout the wider professional community. I argue that my published work is original, because it is concerned with important, but largely neglected, areas of Scottish (and often wider UK) law. Furthermore, I argue that my publications are independent and significant in that they provide a distinct and critical evaluation of existing law and seek to promote the growth of individual status and capacity. This, in turn, often generates greater provision for individual rights, and the imposition in law of private law and state remedies.

This critical appraisal demonstrates three particular themes that are dominant in certain areas of business law, these themes being:  achieving the balance between the interests of debtors and creditors,  the use of legislation to alter business and social behaviour and  the tension between the intention of the legislation and the actuality. These themes are demonstrated throughout my two submitted publications, Company Law, and the Annotated edition of the Bankruptcy and Diligence etc. (Scotland) Act 2007. These form a corpus of work on Scottish business law and in particular, company law, bankruptcy law and diligence. The critical appraisal is a review of certain aspects of this corpus, indicating how and for what purpose these books have been written, the use and effectiveness of the law in each area, and analysing the degree to which the legislation has been successful. The process of writing this critical appraisal caused me to reflect on the drafting of the Companies Act 2006, recent developments in case law on the corporate veil and in particular the efficacy of section 172 of the Companies Act 2006. This encouraged me to carry out further research on how well (or not) s.172 had worked. This proved a particularly fruitful area of research and so has been given substantial treatment in its own right in Chapter 4. The Bankruptcy and Diligence etc. (Scotland) Act 2007 is subjected to an analysis in the light of the three themes to show how the Act was intended to realign the priorities of the needs of debtors and creditors in the light of changed social views on creditors' rights and on bankruptcy. An essential point of this critical appraisal is that legal theories are not as important in the drafting and passing of legislation as is sometimes suggested. This critical appraisal argues that within the areas under discussion, attempts to fit the final legislation into theoretical frameworks do not adequately take account of the political reality underpinning the passing of the legislation. It also argues that there is a schism between political attempts to alter business and social behaviour, or, as the case may be, to alter the interests of debtors and creditors, through the use of legislation, and what actually happens. In the case of diligence, political considerations worked to defeat some ends of the proposed legislation; and in the case of bankruptcy, the reforms introduced by Bankruptcy and Diligence etc. (Scotland) Act 2007, though welcome, required further amendment. In the case of company law, the legislation was ambitious but naïve.

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Historical narratives have limited scholarly appreciation of the impact of rhetoric on the development of Roman law in the late Republican period. This thesis challenges these narratives and attempts to re-evaluate the role of rhetoric in Roman law.

Asylum claimants regularly arrive in the UK without corroborating evidence to support their request for refugee protection. Consequently, an assessment of the credibility of the applicant’s account of persecution tends to become the focal point of asylum decision-making. In order for an applicant’s asylum claim to be assessed as factual, and therefore, credible it must be prepared in a way that conforms to the narrative models in legal discourse and meets the evidential requirements for showing past persecution and a future well-founded fear of persecution. It is for this reason, in part, that the role of legal practitioners becomes crucial. This thesis explores the ways that asylum solicitors deal with the issue of credibility in their daily working practices. It also examines the structural and procedural constraints which affect the working practices of solicitors when representing asylum clients in this way in asylum appeals. Based on ethnographic research conducted in Glasgow over an eighteen-month period, this thesis considers the ways that asylum solicitors approach credibility when representing asylum clients. This thesis explores the different forms of paid and unpaid labour undertaken by asylum solicitors and analyses how external factors such as legal aid funding arrangements affect the morale and working practices of solicitors who represent asylum claimants. It seeks to argue that a criminalising discourse exists in the asylum and immigration processes in Glasgow. Moreover, it demonstrates that such discourses extend to a cohort of asylum solicitors working in Glasgow and that the culture of disbelief which exists among these solicitors results in them regularly disbelieving their asylum clients’ accounts. Finally, by considering proposed changes to funding arrangements in Scotland, which would bring them in line with those in place in England and Wales, this thesis contends that were these arrangements to be introduced this would result in the underrepresentation of, and limited access to justice for, asylum applicants in Scotland.

The purpose of this thesis is to explore the effect of the changing constitutional relationship between Scotland and England on the Scottish approach to conflicts of law with an English element (i.e., competitions of jurisdiction between Scots and English courts; cases in which both Scots and English law have a claim to application; and recognition and enforcement of English court orders in Scotland). A historical perspective is obtained by brief study of the period prior to parliamentary union. Once united in one political state, the constitutionalising of conflicts, the internalising of conflicts, and the use of international private law rules, are three ways in which conflicts of law within that state might be handled. The extent to which each of these methods has influenced the Scottish approach to intra-UK conflicts, and the effect of devolution on each, is examined. The availability to Scots courts of public policy objections in respect of English law is also investigated. The context of the Anglo-Scottish relationship changed with UK entry into the (now) European Union, and the effect of that on intra-UK conflict rules is considered. The conclusion is that the nature of the constitutional relationship between Scotland and England impacts upon the handling in Scotland of conflicts of law with an English element. The parliamentary union may not have resulted in wide-spread constitutionalisation of conflicts, but there has been a degree of internalisation of conflicts. In general, however, the interaction of the constitutional relationship between Scotland and England and its private law consequences has permitted, indeed sometimes necessitated, the use (in certain areas) of Scottish international private law rules without differentiation between intra-UK, and international, conflicts.

This thesis is concerned with the special protection afforded religion in United Kingdom (UK) anti-discrimination law. Initial discussions centre on the historical and normative bases for religious liberty in the UK. These debates assess the evolution of domestic legal protection of religion and critique prevailing principles (in particular, the idea of human dignity) underpinning the variety of that protection. Attention is then focused on religious exceptions in UK anti-discrimination law and the practical extent to which they assist religious interests. It is clear that such special measures are aimed at religion as a collective; they do not enhance protection at the individual level. This deficit becomes more acute when considering the limiting effects of recent UK jurisprudence, specifically claims involving religion and discrimination across employment and the provision of goods and services. A particularly problematic trend exhibited in the case law is the courts’ approach to determining justification and proportionality in indirect discrimination. Accordingly, an argument is made for additional special protection. A duty of reasonable accommodation is proposed as a separate claim route in UK anti-discrimination law for religious individuals wishing to be excused from a rule. This is advocated in the field employment, it being noted that the field of goods and services poses challenges for the introduction of such a duty. Comparative analyses with Canada and the United States (US) expose two different models of reasonable accommodation. These are applied to high-profile UK cases featuring religion and indirect discrimination in employment, revealing how reasonable accommodation might have assessed those claims differently. It is submitted that the Canadian model provides a more sophisticated proportionality analysis than its US counterpart. This approach affords a more factually nuanced analysis in balancing the religious claim with a competing legitimate aim. It is contended that such a duty also coheres with both the theory of human dignity and the notion of equality as it features in the conceptual framework of anti-discrimination law.