Scots law

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Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland law, it is one of the three legal systems of the United Kingdom. It shares some elements with the two other systems, but it also has its own unique sources, institutions and nomina juris.

Early Scots law before the 12th century consisted of the different legal traditions of the various cultural groups that inhabited the country at the time, the Gaels in most of the country, with the Britons and Anglo-Saxons in some districts south of the Forth and with the Norse in the islands and north of the River Oykel. The introduction of feudalism from the 12th century and the expansion of the Kingdom of Scotland established the modern roots of Scots law, which was gradually influenced by other, especially Anglo-Norman and continental legal traditions. Although there was some indirect Roman law influence on Scots law, the direct influence of Roman law was slight up until around the 15th century. After this time, Roman law was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and Roman law was in this way partially received into Scots law.

Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland may be passed by the Scottish Parliament, the United Kingdom Parliament, the European Parliament, the Council of the European Union and the United Nations. Some legislation passed by the pre-1707 Parliament of Scotland is still also valid.

Since the Union with England Act 1707, Scotland has shared a legislature with England and Wales. Scotland retained a fundamentally different legal system from that south of the border, but the Union exerted English influence upon Scots law. Since the UK joined the European Union, Scots law has also been affected by European law under the Treaties of the European Union, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the creation of the devolved Scottish Parliament which may pass legislation within all areas not reserved to Westminster, as detailed by the Scotland Act 1998.

Scotland as a distinct jurisdiction

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The United Kingdom, judicially, consists of three jurisdictions: England and Wales, Scotland, and Northern Ireland. There are important differences between Scots Law, English law and Northern Irish law in areas such as property law, criminal law, trust law, inheritance law, evidence law and family law while there are greater similarities in areas of national interest such as commercial law, consumer rights, taxation, employment law and health and safety regulations.

Examples of differences between the jurisdictions include the age of legal capacity (16 years old in Scotland, 18 years old in England and Wales), the use of 15-member juries for criminal trials in Scotland (compared with 12-member juries in England and Wales) who always decide by simple majority, the fact that the accused in a criminal trial does not have the right to elect between a judge or jury trial, judges and juries of criminal trials have the "third verdict" of "not proven" available to them, and the fact that equity was never a distinct branch of Scots law.

There are also differences in the terminology used between the jurisdictions. For example, in Scotland there are no Magistrates' Courts or Crown Court, but there are Justice of the Peace Courts, Sheriff Courts and the College of Justice. The Procurator Fiscal Service provides the independent public prosecution service for Scotland like the Crown Prosecution Service in England and Wales and the Public Prosecution Service in Northern Ireland.

History

Main article: History of Scots law

Scots law can be traced to its early beginnings as a number of different custom systems among Scotland's early cultures to its modern role as one of the three legal jurisdictions of the United Kingdom. The various historic sources of Scots law, including custom, feudal law, canon law, civilian ius commune and English law have created a hybrid or mixed legal system.

The nature of Scots law before the 12th century is largely speculative, but is likely to have been a mixture of different legal traditions representing the different cultures inhabiting the land at the time, including Gaelic, Welsh, Norse and Anglo-Saxon customs. There is evidence to suggest that as late as the 17th century marriage laws in the Highlands and Islands still reflected Gaelic custom, contrary to Catholic religious principles. The formation of the Kingdom of Scotland and its subjugation of the surrounding cultures, completed by the Battle of Carham, established what are approximately the boundaries of contemporary mainland Scotland. The Outer Hebrides were added after the Battle of Largs in 1263, and the Northern Isles were acquired in 1469, completing what is today the legal jurisdiction of Scotland.

From the 12th century feudalism was gradually introduced to Scotland and established feudal land tenure over many parts of the south and east, which eventually spread northward. As feudalism began to develop in Scotland early court systems began to develop, including early forms of Sheriff Courts.

Under Robert the Bruce the importance of the Parliament of Scotland grew as he called parliaments more frequently, and its composition shifted to include more representation from the burghs and lesser landowners. In 1399 a General Council established that the King should hold a parliament at least once a year for the next three years so "that his subjects are served by the law". In 1318 a parliament at Scone enacted a code of law that drew upon older practices, but it was also dominated by current events and focused on military matters and the conduct of the war of Scottish Independence.

From the 14th century we have surviving examples of early Scottish legal literature, such as the Regiam Majestatem (on procedure at the royal courts) and the Quoniam Attachiamenta (on procedure at the baron courts). Both of these important texts, as they were copied, had provisions from Roman law and the ius commune inserted or developed, demonstrating the influence which both these sources had on Scots law.

From the reign of King James I to King James V the beginnings of a legal profession began to develop and the administration of criminal and civil justice was centralised. The Parliament of Scotland was normally called on an annual basis during this period and its membership was further defined. The evolution of the modern Court of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.

The Act of Union 1707 merged the Kingdom of Scotland and the Kingdom of England to form the new Kingdom of Great Britain. Article 19 of the Act confirmed the continuing authority of the College of Justice, Court of Session and Court of Justiciary in Scotland. Article 3, however, merged the Estates of Scotland with the Parliament of England to form the Parliament of Great Britain, with its seat in the Palace of Westminster, London. Under the terms of the Act of Union, Scotland retained its own systems of law, education and Church (Church of Scotland, Presbyterian polity), separately from the rest of the country.

The Parliament of Great Britain otherwise was not restricted in altering laws concerning public right, policy and civil government, but concerning private right, only alterations for the evident utility of the subjects within Scotland were permitted. The Scottish Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to London and the introduction of appeal to the House of Lords (now, by appeal to the new Supreme Court of the United Kingdom) brought further English influence. Acts of the Parliament began to create unified legal statutes applying in both England and Scotland, particularly when conformity was seen as necessary for pragmatic reasons (such as the Sale of Goods Act 1893). Appeal decisions by English judges raised concerns about this appeal to a foreign system, and in the late 19th century Acts allowed for the appointment of Scottish Lords of Appeal in Ordinary. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords. Today the Supreme Court of the United Kingdom usually has a minimum of two Scottish justices to ensure that some Scottish experience is brought to bear on Scottish appeals.

Scots law has continued to change and develop in the 20th century, with the most significant change coming under devolution and the reformation of the Scottish Parliament.

Influential sources

An early Scottish legal compilation, Regiam Majestatem, was based heavily on Glanvill's English law treatise, although it also contains elements of civil law, feudal law, canon law, customary law and native Scots statutes. Although there was some indirect Roman-law influence on Scots law, via medieval ius commune and canon law used in the church courts, the direct influence of Roman law was slight up until around the mid-15th century. After this time, civilian ius commune was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and civil law was in this way partially received in subsidium into Scots law.

Since the Acts of Union 1707, Scotland has shared a legislature with the rest of the United Kingdom. Scotland retained a fundamentally different legal system from that of England and Wales, but the Union brought English influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaties of the European Union, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.

Sources of law

Legislation

The Parliament of the United Kingdom has the power to pass statutes on any issue for Scotland, although under the Sewel convention will not do so in devolved matters without the Scottish Parliament's consent. The Human Rights Act 1998, the Scotland Act 1998 and the European Communities Act 1972 have special status in the law of Scotland. Modern statutes will specify that they apply to Scotland and may also include special wording to take into consideration unique elements of the legal system. Statutes must receive Royal Assent from the Queen before becoming law, however this is now only a formal procedure and is automatic. Legislation of the Parliament of the United Kingdom is not subject to the review of the courts as the Parliament is said to have supreme legal authority; however, in practice the Parliament will tend not to create legislation which contradicts the Human Rights Act 1998 or European law, although it is technically free to do so. The degree to which the Parliament has surrendered this sovereignty is a matter of controversy with arguments generally concerning what the relationship should be between the United Kingdom and the European Union. Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation in the form of statutory instruments. This delegated legislation has legal effect in Scotland so far as the specific provisions of the statutory instrument are duly authorised by the powers of the Act, a question which can be subjected to judicial review.

The Scottish Parliament is a devolved unicameral legislature that has the power to pass statutes only affecting Scotland on matters within its legislative competence. Legislation passed by the Scottish Parliament must also comply with the Human Rights Act 1998 and European law, otherwise the Court of Session or High Court of Justiciary have the authority to strike down the legislation as ultra vires. There have been a number of high-profile examples of challenges to Scottish Parliament legislation on these grounds, including against the Protection of Wild Mammals (Scotland) Act 2002 where an interest group unsuccessfully claimed the ban on fox hunting violated their human rights. Legislation passed by the Scottish Parliament also requires Royal Assent which, like with the Parliament of the United Kingdom, is automatically granted.

Legislation passed by the pre-1707 Parliament of Scotland still has legal effect in Scotland, though the number of statutes that have not been repealed is limited. Examples include the Royal Mines Act 1424, which makes gold and silver mines the property of the Queen, and the Leases Act 1449, which is still relied on today in property law cases.

The European Parliament and Council of the European Union also have the power to create legislation which will have direct effect in Scotland in a range of matters specified under the Treaty on the Functioning of the European Union. All levels of Scottish courts are required to enforce European law. Only the Court of Justice of the European Union has the authority to legally review the competency of a legislative act by the European Parliament and the Council. European legislation will be annulled if it is contrary to the Treaties of the European Union or their spirit, is ultra vires or proper procedures in its creation were not followed.

Legislation which forms part of the law of Scotland should not be confused with a civil code as it does not attempt to comprehensively detail the law. Legislation forms only one of a number of sources.

Common law

Common law is an important legal source in Scotland, especially in criminal law where a large body of legal precedent has been developed, so that many crimes, such as murder, are not codified. Sources of common law in Scotland are the decisions of the Scottish courts and certain rulings of the Supreme Court of the United Kingdom (including its predecessor the House of Lords). The degree to which decisions of the Supreme Court are binding on Scottish courts in civil matters is controversial, especially where those decisions relate to cases brought from other legal jurisdictions; however, decisions of the Supreme Court in appeals from Scotland are considered binding precedent. In criminal cases the highest appellate court is the Court of Justiciary and so the common law related to criminal law in Scotland has been largely developed only in Scotland. Rulings of the European Court of Human Rights and the Court of Justice of the European Union also contribute to the common law in the interpretation of the European Convention on Human Rights and European law respectively.

The common law of Scotland should not be confused with the common law of England, which has different historical roots. The historical roots of the common law of Scotland are the customary laws of the different cultures which inhabited the region, which were mixed together with feudal concepts by the Scottish Kings to form a distinct common law.

The influence that English-trained judges have had on the common law of Scotland through rulings of the Supreme Court of the United Kingdom (and formerly the House of Lords) has been at times considerable, especially in areas of law where conformity was required across the United Kingdom for pragmatic reasons. This has resulted in rulings with strained interpretations of the common law of Scotland, such as Smith v Bank of Scotland.

Academic writings

Sir James Dalrymple, Viscount of Stair

A number of works by academic authors, called institutional writers, have been identified as formal sources of law in Scotland since at least the 19th century. The exact list of authors and works, and whether it can be added to, is a matter of controversy. The generally accepted list of institutional works are:

• Sir Thomas Craig of Riccarton's Jus Feudale (1603);
• Sir James Dalrymple, Viscount of Stair's Institutions of the law of Scotland (1681);
• Andrew MacDouall, Lord Bankton's An Institute of the Laws of Scotland (1751–1753);
• John Erskine of Carnock's An Institute of the Law of Scotland (1773); and,
• George Joseph Bell's Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisprudence (1804) and Principles of the Law of Scotland (1829).

Some commentators would also consider the following works to be included:

• Sir George Mackenzie of Rosehaugh's The Institutions of the Law of Scotland (1684);
• John Erskine of Carnock's Principles of the Law of Scotland (1754); and,
• Henry Home, Lord Kames' Principles of Equity (1760)

The recognition of the authority of the institutional writers was gradual and developed with the significance in the 19th century of stare decisis. The degree to which these works are authoritative is not exact. The view of University of Edinburgh Professor Sir Thomas Smith was, "the authority of an institutional writer is approximately equal to that of a decision by a Division of the Inner House of the Court of Session".

Custom

John Erskine of Carnock, an institutional writer, described legal custom as, "that which, without any express enactment by the supreme power, derives force from its tacit consent; which consent is presumed from the inveterate or immemorial usage of the community." Legal custom in Scotland today largely plays a historical role, as it has been gradually eroded by statute and the development of the institutional writers' authority in the 19th century. Some examples do persist in Scotland, such as the influence of Udal law in Orkney and Shetland. However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.

Legal institutions

Government of Scotland

The Scottish Parliament located in Edinburgh has devolved powers to legislate for Scotland.

Main article: Scottish Government

The Scottish Government, led by the First Minister, is responsible for formulating policy and implementing laws passed by the Scottish Parliament. The Scottish Parliament nominates one of its Members to be appointed as First Minister by the Queen. The First Minister is assisted by various Cabinet Secretaries (Ministers) with individual portfolios and remits, who are appointed by the First Minister with the approval of Parliament. Junior Scottish Ministers are similarly appointed to assist Cabinet Secretaries in their work. The Scottish Law Officers, the Lord Advocate and Solicitor General can be appointed from outside the Parliament's membership, but are subject to its approval. The First Minister, the Cabinet Secretaries and the Scottish Law Officers are the Members of the Scottish Government. They are collectively known as the "Scottish Ministers".

The Scottish Government has executive responsibility for the Scottish legal system, with functions exercised by the Cabinet Secretary for Justice. The Cabinet Secretary for Justice has political responsibility for policing, law enforcement, the courts of Scotland, the Scottish Prison Service, fire services, civil emergencies and civil justice.

Legislature

Main article: Scottish Parliament

Many areas of Scots law are legislated for by the Scottish Parliament, in matters devolved from the Parliament of the United Kingdom. Areas of Scots law over which the Scottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are reserved to Westminster including defence, international relations, fiscal and economic policy, drugs law, and broadcasting. The Scottish Parliament also has been granted limited tax raising powers. Although technically the Parliament of the United Kingdom retains full power to legislate for Scotland, under the Sewel convention it will not legislate on devolved matters without the agreement of the Scottish Parliament.

Judiciary

Main article: Courts of Scotland

Criminal courts

High Court of Justiciary

Less serious criminal offences which can be dealt with under summary procedure are handled by local Justice of the Peace Courts. The maximum penalty which a normal Justice of the Peace can impose is 60 days imprisonment or a fine not exceeding £2,500.

Sheriff Courts act as regional criminal courts and deal with cases under both summary and solemn procedure. Cases can be heard either before the Sheriff or the Sheriff and a jury. The maximum penalty which the Sheriff Court can impose, where heard just by the Sheriff, is 12 months imprisonment or a fine not exceeding £10,000. A case before a Sheriff and jury can result in up to 5 years imprisonment or an unlimited fine.

More serious crimes and appeals from the Sheriff Court are heard by the High Court of Justiciary. There is no appeal available in criminal cases to the Supreme Court of the United Kingdom, with respect to points of criminal law. Cases where the accused alleges a breach of the European Convention on Human Rights or European law can also be referred or appealed to the UK Supreme Court for a ruling on the relevant alleged breach. In these cases the UK Supreme Court is the successor to the House of Lords as the highest civil court having taken over the judicial functions of the House of Lords and the Privy Council from 2009; an appeal to it arising from a criminal case deals with the accused's rights under civil law not any direct point of criminal law although a successful appeal has the capability of invalidating the preceding criminal trial if it amounts to a breach of the right to a fair trial required by the Human Rights Act 1998.

It should also be noted that the bare phrase Supreme Court(s) might often be a reference to the Court of Session and/or the Court of Criminal Appeal as demonstrated on the sign at the entrance to the courts in Parliament Square in Edinburgh.

Civil courts

Sheriff Courts also act as regional civil courts and deal with most cases, unless they are particularly complicated or involve large sums of money. Decisions of a Sheriff Court are appealed to the Sheriff Principal, then to the Inner House of the Court of Session, and finally to the Supreme Court of the United Kingdom.

Complicated or high-value cases can be heard at first instance by the Outer House of the Court of Session. Decisions of the Outer House are appealed to the Inner House of the Court of Session, and then to the Supreme Court of the United Kingdom.

Scottish courts may make a reference for a preliminary ruling to the Court of Justice of the European Union in cases involving European law.

Specialist courts

There are also a number of specialist courts and tribunals that have been created to hear specific types of disputes. These include Children's Hearings, the Lands Tribunal for Scotland, the Scottish Land Court and the Court of the Lord Lyon. The Employment Appeal Tribunal is also an example of a cross-jurisdictional tribunal.

Legal profession

The Scottish legal profession has two main branches, advocates and solicitors.

Advocates, the equivalent of the English barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the latter being designated King's or Queen's Counsel. Advocates specialise in presenting cases before courts and tribunals, with near-exclusive rights of audience, and in giving legal opinions. They usually receive instructions indirectly from clients through solicitors, though in many circumstances they can be instructed directly by members of certain professional associations.

Solicitors are members of the Law Society of Scotland and deal directly with their clients in all sorts of legal affairs. In the majority of cases they present their client's case to the court, and while traditionally they did not have the right to appear before the higher courts, since 1992 they have been able to apply for extended rights, becoming known as solicitor advocates. Notaries public, unlike their continental equivalent, are not members of a separate profession; they must be solicitors, and most solicitors are also notaries.

Branches of the law

The principal division in Scots law is between private law (laws governing the relationship between people) and public law (laws governing the relationship between the State and the people). Private law is further categorised into laws on Persons, Obligations, Property, Actions and Private International Law. The main subjects of public law are constitutional law, administrative law and criminal law and procedure.

Private law

• Bankruptcy
• Company / Partnership
• Contract
• Unilateral promise
• Delict
• Unjustified enrichment
• Employment
• Family
• Inheritance
• Promise
• Property
• Trusts

Public law

• Administrative
• Civil procedure
• Constitutional
• Criminal
• Tax

See also

• List of leading Scottish legal cases

References

• Barrow, Geofrey. Kingship and Unity: Scotland 1000–1306. Edinburgh University Press, 1989. ISBN 978-0-7486-0104-2
• Boyle, Alan; Himsworth, Chris; MacQueen, Hector. Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR. Hart Publishing, 2002. ISBN 978-1-84113-044-6
• Bradley, Anthony Wilfred; Ewing, Keith D. Constitutional and Administrative Law. Pearson Education, 2007. ISBN 978-1-4058-1207-8
• Davidson, Fraser; MacGregor, Laura. Commercial Law in Scotland. W. Green & Son, 2008. ISBN 978-0-414-01610-1
• Erskine, An Institute of the Law of Scotland
• Gretton, George; Steven, Andrew. Property, Trusts and Successions. Tottel Publishing, 2009. ISBN 978-1-84592-153-8
• Jones, Timothy; Christie, Michael. Criminal Law. W. Green & Son, 2008. ISBN 978-0-414-01683-5
• Palmer, Veron. Mixed jurisdictions worldwide: the third legal family. Cambridge University Press, 2001. ISBN 978-0-521-78154-1
• Reid, Kenneth; Zimmerman, Reinhard. A History of Private Law in Scotland: I. Introduction and Property. Oxford University Press, 2000. ISBN 0-19-829941-9
• Reid, Kenneth; Zimmerman, Reinhard. A History of Private Law in Scotland: II. Obligations. Oxford University Press, 2000. ISBN 0-19-829941-9
• Smith, Thomas. A Short Commentary on the Law of Scotland. Green & Son Ltd, 1962.
• The Laws of Scotland: Stair Memorial Encyclopaedia, Lexis Library.
• Tetley, William Q.C. Mixed Jurisdictions: common law vs. civil law (codified and uncodified). 4 Uniform L. rev. (N.S.), 1999.
• Thomson, Stephen, Mixed Jurisdiction and the Scottish Legal Tradition: Reconsidering the Concept of Mixture (2014) 7(1) Journal of Civil Law Studies 51-91
• White, Robin; Willock, Ian. The Scottish Legal System. Tottel Publishing, 2007. ISBN 978-0-406-00571-7

External links

• "Scottish Court Service". 
• "Law Society of Scotland". 
• "Faculty of Advocates: Scottish Bar". 
• "Scottish Law Commission". 
• "Crown Office and Procurator Fiscal Service".