Scots law

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Scots law (or Scottish law) is the law of Scotland. It is a unique system with ancient roots and has a basis in Roman law, combining features of both uncodified Civil law dating back to the Corpus Juris Civilis and common law with medieval sources. Thus Scotland has a pluralistic legal system, comparable to that of Quebec, Louisiana and South Africa. Since 1707 it has shared a legislature with the rest of the United Kingdom. Both Scotland and England each retained fundamentally different legal systems, but the union brought further English influence on Scots law. In recent years Scots law has also been affected by European law under the Treaty of Rome, and laws can now be passed by the Scottish Parliament within its areas of legislative competence.

The difference of basis between Scots and English law does not have much obvious effect on day to day life, but while some differences are minor such as arbiters (in Scotland) being called arbitrators in England, significant variation shows in some circumstances, an example being house buying where Scots law and practice makes the English problem of gazumping a rarity in Scotland.

Contents

Branches of Scots law

The principal division in Scots Law is that between public law involving the state in some manifestation, and private law where only private persons are involved. Public law covers constitutional law, administrative law and criminal law and procedure. Private law covers those defined under The Law of Persons, including children, adults, partnerships (where the partnership is a separate "legal person" from the individuals in it, which is not the case in English law) and limited companies.

Common law

Many Scots laws are simply part of the law of the land, for example murder and theft are not defined in statute as offences, but come under common law. This has sources in custom, in legal writings and in previous court decisions. Unlike in English law, the use of such precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent.

The principles of natural justice and fairness have always formed a source of Scots Law and are applied by the courts without distinction from the law. Thus Scots Law does not have the complex construct of "Equity" applicable in England.

Certain texts, which come mostly from the 17th century, 18th century and 19th century can be used as authority in the courts in the absence of statute or case law. Their authors include Craig, Jus Feudale (1655) for feudal law, Stair, The Institutions of the Law of Scotland (1681) for civil law and David Hume (nephew of the namesake philosopher) for criminal law.

Statute law

Laws can be set by both the Scottish and Westminster Parliaments, and also the European Union. Acts of the Parliaments can also provide for more detailed laws made by secondary legislation known as Statutory Instruments which are then passed through Parliament more quickly and simply than Acts.

The Scottish Parliament

Some statutes of the pre-1707 Scottish parliament are still in force, and are written in the Scots language. In 1999 a new devolved Scottish Parliament with legislative competence over any matter not reserved to the United Kingdom Parliament at Westminster was established. The Westminster Parliament remains the "sovereign legislature" as defined by Constitutional lawyers, retaining legislative power in relation to Scotland, but the new Scottish Parliament makes full use of the powers given by the devolution settlement to set laws affecting the domestic affairs of Scotland.

The United Kingdom Parliament

The Westminster Parliament serving the whole of the United Kingdom has set Statute law for Scotland since 1707, and continues to deal with reserved matters. Acts of the United Kingdom Parliament can apply to the whole of the UK including Scotland, to Scotland alone or not to Scotland at all.

European law

European Union Regulations and many parts of the Treaty of Rome are directly applicable as law. EU directives passed by the Council of Ministers require member states to legislate to implement them.

Scottish courts are required to interpret legislation in a way compatible with the European Convention on Human Rights. If the Scottish Parliament legislates contrary to the Convention the law can be struck down by the courts. Courts may make a declaration that an Act of the Westminster Parliament is incompatible with the Convention.

Private law

See also Law of obligations.

Contract

Contracts can be formulated by unilateral promise or bilateral agreement. The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract where all the obligations are on one side.

Delict

Delict deals with the righting of legal wrongs in civil law, on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of Tort, the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as assault, defamation are used in both systems, their technical meanings differ.

The landmark decision on negligence, for Scotland and for the rest of the United Kingdom, is the Scottish case of Donoghue v. Stevenson (1932) which ended up being decided in the context of both English law and Scots law.

WARNING This case was particularly gruesome and those of a delicate disposition are advised not to read the following paragraph!

Mrs Donoghue had been enjoying an ice cream with ginger beer her friend had bought her in Mr Minchella's café in Paisley, when she emptied the opaque ginger beer bottle out and the decomposing remains of a snail emerged. Her distress and subsequent illness was such that she was determined to bring an action for damages — but the poor woman had no contract with the café proprietor as her friend had paid, so she sued the manufacturer for his negligence. The case of the snail in the pop bottle was taken to the House of Lords who found that the manufacturer does indeed have a duty of care, subject to restrictions. This decision had influence in many countries.

Property law

Scots Law of Property distinguishes between Heritable Property, such as land and buildings, and Moveables which includes physically moveable objects where title normally passed only on delivery, as well as moveable rights which includes intellectual property such as patents, trade marks and copyrights. It is worth noting that agreement on an offer for property purchase is legally binding, resulting in a system of conveyancing where buyers get their survey done before making a bid to the seller's solicitor, and after a closing date for bids the seller's acceptance is binding on both parties, preventing gazumping.

Feudal law

The feudal system lingered on in Scots law on land ownership, so that a landowner as a vassal still had obligations to a feudal superior including payment of feu duty. This enabled developers to impose perpetual conditions dictating how buildings had to be constructed and maintained, but added complications and became abused to demand payments from vassals who wanted to make minor changes. In 1974 legislation began a process of redeeming feuduties so that most of these payments were ended, but it was only with the attention of the Scottish Parliament that a series of acts (http://www.ejcl.org/83/art83-5.html) were passed to end the disadvantages while keeping the benefits of the system, the first in 2000, for The Abolition of Feudal Tenure on November 28 2004.

Udal law

It is worth noting that Feudal law has never existed in the Islands of Orkney and Shetland, which rather use a system called Udal Law, owing to their historic ties to Norway.

Legal system

Legal profession

The Scottish legal profession has two branches, Advocates and Solicitors.

Advocates

Advocates, the equivalent of the English Barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the latter also known as Queen's Counsel. Advocates specialise in presenting cases before courts and tribunals, with rights of audience before the higher courts, 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

Solicitors, more numerous, 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 solicitor / advocates.

A solicitor also has the opportunity to become a notary public. These, like their continental equivalent, are members of a separate profession.

Crown Office and Procurator Fiscal Service

This provides independent public prosecution of criminal offences in Scotland (as the more recent Crown Prosecution Service does in England and Wales) and has extensive responsibilities in the investigation and prosecution of crime.

Courts in increasing order of superiority

See also Courts of Scotland.

"Not proven" verdict

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", ""not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know he did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy. A recent example is seen in the case of Sean Flynn, 21, who stood trial at the High Court in Perth accused of murdering his mother, Louise Tiffney (http://news.scotsman.com/index.cfm?id=287052005). Responding to the "not proven" verdict delivered on 16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.

Origins and historical development of Scots law

By the late 11th century Celtic law applied over most of Scotland, with Old Norse law covering the areas under Viking control (resulting in Udal Law still in force in Orkney and Shetland). In following centuries as Norman influence grew and feudal relationships of government were introduced, Scoto-Norman law developed which was initially similar to Anglo-Norman law but over time differences increased (especially after 1328). Early in this process David I of Scotland established the office of Sheriff with civil and criminal jurisdictions as well as military and administrative functions. At the same time Burgh courts emerged dealing with civil and petty criminal matters, developing law on an English model, and the Dean of Guild courts were developed to deal with building and public safety (which they continued to do into the mid 20th century). From the end of the 13th century the Scottish parliament of the Three Estates developed Statute Laws.

Continental influence

From the 12th century the replacement of the Celtic church by Roman Catholicism brought Canon law and Church courts dealing with areas of civil law, introducing Roman law based on 6th century law from the Eastern Roman empire of Justinian. This influence extended as Medieval Scots students of Civil or Canon Law mostly went abroad, to universities in Italy, France, Germany or the Netherlands. (The English universities, Oxford and Cambridge, were closed to Scots.) The University of St. Andrews, founded in 1413, included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The University of Glasgow (1451) was active in law teaching in its early years, one scholar there being William Elphinstone, who then studied abroad and went on to found the University of Aberdeen (1496) which taught canon law until the mid 16th century. Studying abroad continued to be the norm until the 18th century.

In the early 16th century a costly war pushed James V of Scotland to do a deal with Pope Paul III for funds in the form of a tithe on the church in exchange for agreeing to found a College of Justice, in 1532. By 1560 the Reformation removed Papal authority and Canon Law jurisdiction was taken over by the Commissary Courts, whose jurisdiction, along with that of the Scottish Court of Exchequer was subsumed into that of the Court of Session in the 19th century.

United Kingdom

The Treaty of Union of 1707, confirmed in the Acts of Union, preserved the Scottish Legal System, with provisions that the Court of Session or College of Justice (and the Court of Justiciary) ... remain in all time coming within Scotland, and that Scots Law remain in the same force as before. The Parliament of Great Britain was now unrestricted 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 Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to the Westminster parliament and the introduction of appeal to the House of Lords brought further English influence and it is sometimes stated that this marked the introduction of common law into the system, but Scots common law incorporates different principles and makes use of legal writings which predate the Union. Appeal decisions by English lords 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. Nowadays the House of Lords legislative committee usually has a minimum of two Scottish Judges to ensure that some Scottish experience is brought to bear on Scottish appeals.

The Scottish Highlands had been affected by Scots law but remained largely independent, with remnants of Celtic law still in force. Their involvement in Jacobitism led to a series of Acts attempting to crush the Scottish clan structure and bring them firmly within Scots law. The Heritable Jurisdictions Act of 1747 (in clear breach of the Treaty of Union) removed the virtually sovereign power the chiefs had over their clan, but probably affected other hereditary offices more, with the result that sheriffs-depute, who had actually done the work for the hereditary office holders, became crown appointees and took over the role.

Scots law has continued to change and develop, with the most significant change coming with the establishment of the Scottish Parliament as described above.

See also

External links

  • Scottish Court Service Website (http://www.scotcourts.gov.uk) Details of Scottish courts and caselaw.
  • Law Society of Scotland (http://www.lawscot.org.uk/) The Law Society organizes solicitors, who are 95% of all Scottish lawyers. Its site has a very good section headed 'What is Scots law'.
  • Faculty of Advocates (http://www.advocates.org.uk/web/fac1.htm) The Faculty of Advocates organizes advocates, who are the elite 5% of Scottish lawyers including QCs.
  • Scottish Law Commission (http://www.scotlawcom.gov.uk/html/introduction.html) The Scottish Law Commission is in charge of proposals for law reform in Scotland. This site has many discussions of the law as it stands and proposals for reform.
  • Jonathan Mitchell QC (http://www.jonathanmitchell.info) Material on how to use advocates, jurisdiction of Scottish courts, freedom of information, and much else. Weekly update of most recent cases decided in Court of Session.
  • Govan Law Centre (http://www.govanlc.com/) Material on welfare law in Scotland.
  • Scottish Legal Aid Board (http://www.slab.org.uk/) Material on how to get legal aid in Scotland.
  • Scots Law News (http://www.law.ed.ac.uk/sln/) Well-kept Scottish law blog with news of current developments.
  • Scottish Criminal Cases Review Commission (http://www.sccrc.org.uk/) All cases accepted by the SCCRC are subjected to a robust and thoroughly impartial review before a decision on whether or not to refer to the High Court is taken.
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