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  • Omar Al-Asadi

Santa Claus v. the Scottish Legal System


It’s that time of year again, that strange time when we willingly let a large, red-suited man into our house, eat our food and deliver socks to our loved ones. Of course, we all love the big red man, don’t we? Well not me. How can you not love a man who gives up his time to provide gifts and spread joy to billions worldwide, I hear you ask? After receiving a rather large lump of coal last year from this supposed bringer of joy, I’m having none of it. To bring justice to every boy and girl who has fallen victim to his arbitrary naughty or nice list, I believe it is finally time for Santa Claus to be held accountable for his actions. From his home in Lapland, to partaking in his little jaunt across the world, he completely disregards the law and leaves a trail of minor offences, to full blown human rights violations in his wake. This year, I’m going to prove that Santa is naughty, not nice.


Trespassing:

In delivering his presents, Santa uses the unorthodox and highly suspicious entry-method of sliding down chimneys, presumably under the premise that there are no laws against trespassing in Scotland, a common misconception. The Land Reform Act 2003 introduced universal public access rights to land for a variety of uses, including recreational, educational and commercial, as long as they are exercised responsibly. However, with all the Christmas lists he must read each year, it is a surprise that Santa has failed to read the fine print, in particular that of Section 6, which excludes houses from the Act. Unfortunately for Santa his conniving behaviour falls under the Scots Law description of trespassing – ‘the process of entering another person’s property or land without permission’ – a civil wrong under the Trespass (Scotland) Act 1865, worthy of a court order and a fine of up to £200.


Defamation:

Last year, in placing myself and numerous others on his naughty list, Santa Claus has set himself up for countless defamation lawsuits. Defamation occurs when something is said or written about someone which is untrue and damages their reputation in the eyes of society. By declaring that I am naughty, Santa has without a doubt damaged my once stellar reputation among my peers. Scots Law even has a peculiarity in which the false statement is not required to be communicated to a third party, so even if nobody knew that I was placed on Santa’s naughty list, he could still be held liable for the emotional harm he caused me by not delivering that dream railway set I had wished for. However, if Santa can prove that the statement was in fact true, a defence known as veritas, and that I am indeed naughty, the case against him would be dismissed. Good luck in succeeding in that defence though Santa, I have many old ladies who I have helped cross Great Western Road to use as witnesses.


The Defamation and Malicious Publication (Scotland) Bill, which is attempting to modernise Scots defamation law by making it more applicable to social media posts, is currently in consideration by Holyrood. It aims to introduce a serious harm threshold, ensuring that a defamation action can only be brought if a statement caused serious harm to the person making the complaint. The many tears I have shed this year thanks to Santa will undoubtedly meet this new threshold. After all, who is Santa to decide who is naughty or nice, that is surely a matter for the courts.


Human Rights:

Although I, and many others, are victims of Santa’s callous ways, his true victims are those who work for him, his elves. In order to investigate Santa’s behaviour, I have spent weeks studying numerous Christmas films, reaching the conclusion that I desperately need a job. I also realised that these films provide much evidence of elves working 364 days a year in Santa’s workshop in Lapland, all without pay. Considering nobody has ever seen elves outside of Lapland, we can only assume that Santa Claus has taken away all their liberties and is using them as forced labour. Although I am no expert on Finnish employment rights, and cannot say if Santa is violating their laws, Finland is a party to the European Convention of Human Rights, as is Scotland. Human rights are a devolved subject and so the Scottish Parliament has the competence to observe and implement international human rights treaties. Article 4 of the Convention states that “no one shall be held in slavery or servitude” and that “no one shall be required to perform forced or compulsory labour.” Santa and his gulag, (sorry I mean workshop) clearly violates this law, however I am sure Santa and his crack team of solicitors will make the crass argument that human rights do not apply to elves. See you in Strasbourg Mr Claus.


Animal Rights:

Not only do elves suffer at the hands of Santa, but his reindeer are also forced to endure severe hardships. The Animal Welfare (Scotland) Act 2006 introduced a duty of care on those responsible for animals and makes it a criminal offence to cause a protected animal unnecessary suffering. Santa’s domesticated reindeer fall under this ‘protected animal’ definition as they do not live in the wild, as set out in Section 17 of the Act. The freedoms afforded to these protected animals include ‘the ability to exhibit normal behaviour patterns’ and ‘the right to be protected from pain, suffering, injury and disease’.


Now I’m no biologist, but I can safely say that forcing reindeer to fly through the air at approximately 1,800 miles a second, carrying an estimated 400,000 tons of toys each year, causes Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, Blitzen and Rudolph unnecessary suffering and prevents them from exhibiting normal behaviour patterns. If Amazon can deliver goods worldwide in 24 hours without the use of magical reindeers, then why does Santa feel it’s necessary? In addition to this, Santa has specifically failed in his duty of care towards Rudolph. All of the other reindeer used to laugh and call him names, causing poor Rudolph significant mental suffering. However, Santa only stepped in when he realised that he could utilise Rudolph’s very shiny nose to help navigate the foggy night. His shiny nose, which is known to glow and is generally considered to be red, is a clear indicator that Rudolph has some kind of ailment that requires veterinary treatment. Yet, each Christmas, we still see that shiny red nose in the sky, proof that Santa continually fails in his duty of care. It is clear that Saint Nick is no saint at all.


This is just the tip of the iceberg when it comes to crimes that Santa has committed. Travelling across different jurisdictions violates numerous visa requirements. Failing to modernise his coal-powered workshop contravenes the Paris Climate Agreement. Utilising a dubious surveillance system, keeping tabs on the behaviour of millions of children across the globe breaches privacy rights. The list is endless. Should we really let this man into our house considering what we know? I will no doubt be on Santa’s naughty list for the second year running, however, this year it’ll all be worth it just to see Santa Claus locked away in HM Prison Barlinnie, and if not, I am sure Amazon will make Santa redundant soon enough! Merry Christmas everyone!

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