![Parliament House, Edinburgh](https://upload.wikimedia.org/wikipedia/commons/9/95/Parliament_House%2C_Edinburgh.JPG)
Scots law () is the
legal system of
Scotland
Scotland (, ) is a Countries of the United Kingdom, country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a Anglo-Scottish border, border with England to the southeast ...
. It is a hybrid or mixed legal system containing
civil law and
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
elements, that traces its roots to a number of different historical sources. Together with
English law and
Northern Ireland law
The law of Northern Ireland is the legal system of statute and common law operating in Northern Ireland since the partition of Ireland established Northern Ireland as a distinct jurisdiction in 1921. Prior to 1921, Northern Ireland was part of ...
, it is one of the three
legal systems of the United Kingdom.
[Stair, General Legal Concepts (Reissue), para. 4 (Online) Retrieved 2011-11-29]
Early Scots law before the 12th century consisted of the different legal traditions of the various cultural groups who inhabited the country at the time, the
Gaels
The Gaels ( ; ga, Na Gaeil ; gd, Na Gàidheil ; gv, Ny Gaeil ) are an ethnolinguistic group native to Ireland, Scotland and the Isle of Man in the British Isles. They are associated with the Gaelic languages: a branch of the Celtic langu ...
in most of the country, with the
Britons
British people or Britons, also known colloquially as Brits, are the citizens of the United Kingdom of Great Britain and Northern Ireland, the British Overseas Territories, and the Crown dependencies.: British nationality law governs mod ...
and
Anglo-Saxons
The Anglo-Saxons were a Cultural identity, cultural group who inhabited England in the Early Middle Ages. They traced their origins to settlers who came to Britain from mainland Europe in the 5th century. However, the ethnogenesis of the Anglo- ...
in some districts south of the Forth and with the
Norse in the islands and north of the
River Oykel
The River Oykel ( gd, Òiceall or , ) is a major river in northern Scotland that is famous for its salmon fishing. It rises on Ben More Assynt, a few miles from Ullapool on the west coast of Scotland, and drains into the North Sea via the Kyle ...
. The introduction of
feudalism
Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structur ...
from the 12th century and the expansion of the
Kingdom of Scotland
The Kingdom of Scotland (; , ) was a sovereign state in northwest Europe traditionally said to have been founded in 843. Its territories expanded and shrank, but it came to occupy the northern third of the island of Great Britain, sharing a l ...
established the modern roots of Scots law, which was gradually influenced by other, especially
Anglo-Norman Anglo-Norman may refer to:
*Anglo-Normans, the medieval ruling class in England following the Norman conquest of 1066
* Anglo-Norman language
**Anglo-Norman literature
* Anglo-Norman England, or Norman England, the period in English history from 10 ...
and
continental legal traditions. Although there was some indirect
Roman law
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor Ju ...
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 and the
United Kingdom Parliament
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremac ...
. Some legislation passed by the pre-1707
Parliament of Scotland
The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature of the Kingdom of Scotland from the 13th century until 1707. The parliament evolved during the early 13th century from the king's council o ...
is still also valid.
Since the
Union with England Act 1707
The Acts of Union ( gd, Achd an Aonaidh) were two Acts of Parliament: the Union with Scotland Act 1706 passed by the Parliament of England, and the Union with England Act 1707 passed by the Parliament of Scotland. They put into effect the te ...
, Scotland has shared a
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
with
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
. 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
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
under the
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures ...
, the requirements of the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
(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
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was o ...
.
[Sch. 5 Scotland Act 1998][Devolved and reserved matters explained](_blank)
, Scottish Parliament, Retrieved 2011-10-22
The
UK Withdrawal from the European Union (Continuity) (Scotland) Act 2020 was passed by the Scottish Parliament in December 2020. It received
Royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
on 29 January 2021 and came into operation on the same day. It provides powers for the Scottish Ministers to keep devolved Scots law in alignment with future
EU Law
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its val ...
.
Scotland as a distinct jurisdiction
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
A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the " sett ...
,
inheritance law
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officially ...
,
evidence law
The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of f ...
and
family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage ...
while there are greater similarities in areas of UK-wide 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 but 18 years old in England and Wales), and the fact that
equity was never a distinct branch of Scots law. Some examples in criminal law include:
* 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.
[Jones, p. 46]
* The accused in a criminal trial does not have the right to elect between a
judge or
jury trial
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.
Jury trials are used in a significan ...
.
* Judges and juries of criminal trials have the "third verdict" of ''
not proven
Not proven (, ) is a verdict available to a court of law in Scotland. Under Scots law, a criminal trial may end in one of three verdicts, one of conviction ("guilty") and two of acquittal ("not proven" and "not guilty").The Scottish criminal ju ...
'' available to them.
* The requirement for
corroborating evidence
Corroborating evidence, also referred to as corroboration, is a type of evidence in law.
Types and uses
Corroborating evidence tends to support a proposition that is already supported by some initial evidence, therefore confirming the propositio ...
means at least two independent sources of evidence are required in support of each crucial fact before an accused can be convicted.
In Scotland there are
justice of the peace court
A justice of the peace court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences.
History
The commission of the peace was originall ...
s,
sheriff courts, not
magistrates' courts
A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings.
Courts
* Magistrates' court (England and Wales)
* Magistrate's Cour ...
or
Crown Court as in England and Wales, and the
College of Justice
The College of Justice includes the Supreme Courts of Scotland, and its associated bodies.
The constituent bodies of the national supreme courts are the Court of Session, the High Court of Justiciary, the Office of the Accountant of Court, an ...
. The
Crown Office and Procurator Fiscal Service
The Crown Office and Procurator Fiscal Service is the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by His Majesty's Lord Advocate, who under the ...
provides the independent public prosecution service for Scotland like the
Crown Prosecution Service
The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions.
The main responsibilities of the CPS are to provide legal advi ...
in England and Wales and the
Public Prosecution Service in Northern Ireland.
History
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
Custom, customary, or consuetudinary may refer to:
Traditions, laws, and religion
* Convention (norm), a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom
* Norm (social), a r ...
,
feudal law,
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
,
civilian
Civilians under international humanitarian law are "persons who are not members of the armed forces" and they are not " combatants if they carry arms openly and respect the laws and customs of war". It is slightly different from a non-combatant ...
''
ius commune
''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" ...
'' 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
The Highlands and Islands is an area of Scotland broadly covering the Scottish Highlands, plus Orkney, Shetland and Outer Hebrides (Western Isles).
The Highlands and Islands are sometimes defined as the area to which the Crofters' Act of 18 ...
still reflected Gaelic custom, contrary to
Catholic
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
religious principles. The formation of the Kingdom of Scotland and its subjugation of the surrounding cultures, completed by the
Battle of Carham
The Battle of Carham (c. 1018) was fought between the Kingdom of Scotland and the Northumbrians at Carham on Tweed. Uhtred, son of Waltheof of Bamburgh (or his brother Eadwulf), fought the combined forces of Malcolm II of Scotland and Owen ...
, established what are approximately the boundaries of contemporary mainland Scotland. The
Outer Hebrides were added after the
Battle of Largs
The Battle of Largs (2 October 1263) was a battle between the kingdoms of Norway and Scotland, on the Firth of Clyde near Largs, Scotland. Through it, Scotland achieved the end of 500 years of Norse Viking depredations and invasions despite bei ...
in 1263, and the
Northern Isles
The Northern Isles ( sco, Northren Isles; gd, Na h-Eileanan a Tuath; non, Norðreyjar; nrn, Nordøjar) are a pair of archipelagos off the north coast of mainland Scotland, comprising Orkney and Shetland. They are part of Scotland, as are th ...
were acquired in 1469, completing what is today the legal jurisdiction of Scotland.
From the 12th century
feudalism
Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structur ...
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
Robert I (11 July 1274 – 7 June 1329), popularly known as Robert the Bruce (Scottish Gaelic: ''Raibeart an Bruis''), was King of Scots from 1306 to his death in 1329. One of the most renowned warriors of his generation, Robert eventual ...
the importance of the
Parliament of Scotland
The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature of the Kingdom of Scotland from the 13th century until 1707. The parliament evolved during the early 13th century from the king's council o ...
grew as he called parliaments more frequently, and its composition shifted to include more representation from the
burghs and lesser landowners.
[Reid, ''I. Introduction and Property'', p. 38] 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
A scone is a baked good, usually made of either wheat or oatmeal with baking powder as a leavening agent, and baked on sheet pans. A scone is often slightly sweetened and occasionally glazed with egg wash. The scone is a basic component ...
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
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor Ju ...
and the ''
ius commune
''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" ...
'' inserted or developed, demonstrating the influence which both these sources had on Scots law.
From the reign of King
James I James I may refer to:
People
*James I of Aragon (1208–1276)
*James I of Sicily or James II of Aragon (1267–1327)
*James I, Count of La Marche (1319–1362), Count of Ponthieu
*James I, Count of Urgell (1321–1347)
*James I of Cyprus (1334–13 ...
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 1688
Glorious Revolution and the
Claim of Right
The Claim of Right (c. 28) is an Act passed by the Convention of the Estates, a sister body to the Parliament of Scotland (or Three Estates), in April 1689. It is one of the key documents of United Kingdom constitutional law and Scottish con ...
in 1689
established Parliamentary Sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
in Scotland, and the
Acts of Union 1707 merged the
Kingdom of Scotland
The Kingdom of Scotland (; , ) was a sovereign state in northwest Europe traditionally said to have been founded in 843. Its territories expanded and shrank, but it came to occupy the northern third of the island of Great Britain, sharing a l ...
and the
Kingdom of England
The Kingdom of England (, ) was a sovereign state on the island of Great Britain from 12 July 927, when it emerged from various History of Anglo-Saxon England, Anglo-Saxon kingdoms, until 1 May 1707, when it united with Kingdom of Scotland, ...
to form the new
Kingdom of Great Britain
The Kingdom of Great Britain (officially Great Britain) was a Sovereign state, sovereign country in Western Europe from 1 May 1707 to the end of 31 December 1800. The state was created by the 1706 Treaty of Union and ratified by the Acts of ...
. Article 19 of the
Act confirmed the continuing authority of the
College of Justice
The College of Justice includes the Supreme Courts of Scotland, and its associated bodies.
The constituent bodies of the national supreme courts are the Court of Session, the High Court of Justiciary, the Office of the Accountant of Court, an ...
,
Court of Session and
Court of Justiciary in Scotland. Article 3, however, merged the
Estates of Scotland
The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature of the Kingdom of Scotland from the 13th century until 1707. The parliament evolved during the early 13th century from the king's council of ...
with the
Parliament of England
The Parliament of England was the legislature of the Kingdom of England from the 13th century until 1707 when it was replaced by the Parliament of Great Britain. Parliament evolved from the great council of bishops and peers that advised ...
to form the
Parliament of Great Britain, with its seat in the
Palace of Westminster,
London
London is the capital and List of urban areas in the United Kingdom, largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary dow ...
. Under the terms of the Act of Union, Scotland retained its own systems of law, education and Church (
Church of Scotland
The Church of Scotland ( sco, The Kirk o Scotland; gd, Eaglais na h-Alba) is the national church in Scotland.
The Church of Scotland was principally shaped by John Knox, in the Reformation of 1560, when it split from the Catholic Church ...
,
Presbyterian
Presbyterianism is a part of the Reformed tradition within Protestantism that broke from the Roman Catholic Church in Scotland by John Knox, who was a priest at St. Giles Cathedral (Church of Scotland). Presbyterian churches derive their nam ...
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 in civil but not criminal cases to the
House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
(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
The Sale of Goods Act 1893 (56 & 57 Vict. c.71) was an Act of the Parliament of the United Kingdom of Great Britain and Ireland which regulated contracts in which goods are sold and bought. Its purpose was to define the rights and duties of the ...
). 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
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
used in the
church courts
An ecclesiastical court, also called court Christian or court spiritual, is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages, these courts had much wider powers in many areas of Europe than be ...
, 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
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
with the rest of the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
. Scotland retained a fundamentally different legal system from that of
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, but the Union brought
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ide ...
influence on Scots law. In recent years, Scots law has also been affected by
European law
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
under the
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures ...
, the requirements of the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
(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
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was o ...
.
Sources of law
Legislation
The
Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
has the power to pass
statutes on any issue for Scotland, although under the
Sewel convention it will not do so in
devolved matters without the
Scottish Parliament's consent.
[Bradley & Ewing]
p. 22
p. 64
/ref> The Human Rights Act 1998, the Scotland Act 1998
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was o ...
and the European Communities Act 1972 have special status in the law of Scotland. Modern statutes will specify that they apply to Scotland
Scotland (, ) is a Countries of the United Kingdom, country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a Anglo-Scottish border, border with England to the southeast ...
and may also include special wording to take into consideration unique elements of the legal system. Statutes must receive Royal Assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
from the King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...
before becoming law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
, however this is now only a formal procedure and is automatic. Legislation of the Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
is not subject to revocation by the courts as the Parliament is said to have supreme legal authority; however, application of legislation is subject to judicial review and also in practice, the Parliament will tend not to create legislation which contradicts the Human Rights Act 1998 or European law
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
, 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
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
and the European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been de ...
. 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
Devolution is the statutory delegation of powers from the central government of a sovereign state to govern at a subnational level, such as a regional or local level. It is a form of administrative decentralization. Devolved territories ...
unicameral
Unicameralism (from ''uni''- "one" + Latin ''camera'' "chamber") is a type of legislature, which consists of one house or assembly, that legislates and votes as one.
Unicameral legislatures exist when there is no widely perceived need for multi ...
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
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
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
, otherwise the Court of Session or High Court of Justiciary have the authority to strike down the legislation as ''ultra vires
('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
''. 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
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
which, like with the Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
, is automatically granted.
Legislation passed by the pre-1707 Parliament of Scotland
The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature of the Kingdom of Scotland from the 13th century until 1707. The parliament evolved during the early 13th century from the king's council o ...
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
The Royal Mines Act 1424 was an act of the Parliament of Scotland (1424 c. 12) stating that gold and silver mines containing ore above a certain value would belong to the king.
This made such mines '' inter regalia'' under Scots law (that is, ...
, which makes gold and silver mines the property of the King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...
, and the Leases Act 1449, which is still relied on today in property law cases.
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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
is an important legal source in Scotland, especially in criminal law where a large body of legal precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
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
The courts of Scotland are responsible for administration of justice in Scotland, under statutory, common law and equitable provisions within Scots law. The courts are presided over by the judiciary of Scotland, who are the various judicial ...
and certain rulings of the Supreme Court of the United Kingdom (including its predecessor the House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
).[The Criminal Courts](_blank)
Healthy & Safety Executive, Retrieved 2011-10-22 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
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great va ...
. 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
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
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
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
and European law
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
respectively.
The common law of Scotland should not be confused with the common law of England
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
, which has different historical roots.[Stair, vol. 22, para. 359 (Online) Retrieved 2011-10-26] 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
The monarch of Scotland was the head of state of the Kingdom of Scotland. According to tradition, the first King of Scots was Kenneth I MacAlpin (), who founded the state in 843. Historically, the Kingdom of Scotland is thought to have grown ...
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
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
) has been at times considerable, especially in areas of law where conformity was required across the United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
for pragmatic reasons. This has resulted in rulings with strained interpretations of the common law of Scotland, such a
''Smith v Bank of Scotland''
Academic writings
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.[Stair, vol. 22, para. 538 (Online) Retrieved 2011-11-18] The generally accepted list[Stair, vol. 22, para. 537 (Online) Retrieved 2011-11-18] 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
John Erskine of Carnock (4 November 1695 – 1 March 1768) was a Scottish jurist and professor of Scottish law at the University of Edinburgh. He wrote the ''Principles of the Law of Scotland'' and ''An Institute of the Law of Scotland'', pr ...
'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
John Erskine of Carnock (4 November 1695 – 1 March 1768) was a Scottish jurist and professor of Scottish law at the University of Edinburgh. He wrote the ''Principles of the Law of Scotland'' and ''An Institute of the Law of Scotland'', pr ...
's ''Principles of the Law of Scotland (1754)''; and,
*Henry Home, Lord Kames
Henry Home, Lord Kames (169627 December 1782) was a Scottish writer, philosopher, advocate, judge, and agricultural improver. A central figure of the Scottish Enlightenment, a founding member of the Philosophical Society of Edinburgh, and a ...
' ''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
The University of Edinburgh ( sco, University o Edinburgh, gd, Oilthigh Dhùn Èideann; abbreviated as ''Edin.'' in post-nominals) is a public research university based in Edinburgh, Scotland. Granted a royal charter by King James VI in 15 ...
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
John Erskine of Carnock (4 November 1695 – 1 March 1768) was a Scottish jurist and professor of Scottish law at the University of Edinburgh. He wrote the ''Principles of the Law of Scotland'' and ''An Institute of the Law of Scotland'', pr ...
, an institutional writer, described legal custom
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
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
Udal law is a Norse-derived legal system, found in Shetland and Orkney in Scotland, and in Manx law in the Isle of Man. It is closely related to Odelsrett; both terms are from Proto-Germanic *''Ōþalan'', meaning "heritage; inheritance".
Hi ...
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 Government, led by the First Minister
A first minister is any of a variety of leaders of government cabinets. The term literally has the same meaning as "prime minister" but is typically chosen to distinguish the office-holder from a superior prime minister. Currently the title of ' ...
, 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 King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...
.[''Answers to Frequently Asked Questions''](_blank)
The Scottish Parliament, Retrieved 2011-11-21 The First Minister
A first minister is any of a variety of leaders of government cabinets. The term literally has the same meaning as "prime minister" but is typically chosen to distinguish the office-holder from a superior prime minister. Currently the title of ' ...
is assisted by various Cabinet Secretaries with individual portfolio
Portfolio may refer to:
Objects
* Portfolio (briefcase), a type of briefcase
Collections
* Portfolio (finance), a collection of assets held by an institution or a private individual
* Artist's portfolio, a sample of an artist's work or a c ...
s and remits, who are appointed by the First Minister
A first minister is any of a variety of leaders of government cabinets. The term literally has the same meaning as "prime minister" but is typically chosen to distinguish the office-holder from a superior prime minister. Currently the title of ' ...
with the approval of Parliament. Ministers are similarly appointed to assist Cabinet Secretaries in their work. The Scottish Law Officers, (the Lord Advocate
His Majesty's Advocate, known as the Lord Advocate ( gd, Morair Tagraidh, sco, Laird Advocat), is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved p ...
and Solicitor General) can be appointed from outside the Parliament's membership, but are subject to its approval. The First Minister, the Cabinet Secretaries, Ministers 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 and Veterans. The Justice Secretary has political responsibility for policing, law enforcement, the courts of Scotland
The courts of Scotland are responsible for administration of justice in Scotland, under statutory, common law and equitable provisions within Scots law. The courts are presided over by the judiciary of Scotland, who are the various judicial o ...
, the Scottish Prison Service
The Scottish Prison Service (SPS) is an executive agency of the Scottish Government tasked with managing prisons and Young Offender Institutions.
The Chief Executive of the Scottish Prison Service, currently Teresa Medhurst, is responsible f ...
, fire service
A fire department (American English) or fire brigade (Commonwealth English), also known as a fire authority, fire district, fire and rescue, or fire service in some areas, is an organization that provides fire prevention and fire suppression se ...
s, civil emergencies and civil justice.
Legislature
Many areas of Scots law are legislated for by the Scottish Parliament, in matters devolved
Devolution is the statutory delegation of powers from the central government of a sovereign state to govern at a subnational level, such as a regional or local level. It is a form of administrative decentralization. Devolved territories ...
from the Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
. 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
Reserved is a Polish apparel retailer headquartered in Gdańsk, Pomerania, Poland. It was founded in 1999 and remains the largest company of the LPP group, which has more than 1,700 retail stores located in over 20 countries and also owns such ...
to Westminster including defence
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense indus ...
, international relations
International relations (IR), sometimes referred to as international studies and international affairs, is the scientific study of interactions between sovereign states. In a broader sense, it concerns all activities between states—such a ...
, fiscal and economic policy, drugs law, and broadcasting
Broadcasting is the distribution of audio or video content to a dispersed audience via any electronic mass communications medium, but typically one using the electromagnetic spectrum ( radio waves), in a one-to-many model. Broadcasting beg ...
. 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.
Courts of Scotland
Scottish Courts and Tribunals Service
All Scottish courts, except for the Court of the Lord Lyon, are administered by the Scottish Courts and Tribunals Service
, type =
, seal =
, logo = 250px
, logo_caption =
, formed =
, jurisdiction = Scotland
, headquarters = Saughton House, Broomhouse Drive, Edinburgh EH11 3XD
, employees = 1,374
, budget = £129.3 million (2015-2016)
, chief1_name = Lord ...
. The Courts and Tribunals service is a non-ministerial government department with a corporate board chaired by the Lord President of the Court of Session
The Lord President of the Court of Session and Lord Justice General is the most senior judge in Scotland, the head of the judiciary, and the presiding judge of the College of Justice, the Court of Session, and the High Court of Justiciary. The L ...
(the head of the judiciary of Scotland.)
Criminal courts
=Justice of the peace courts
=
Less serious criminal offences which can be dealt with under summary procedure
In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgments may be issued on the merits of a ...
are handled by local Justice of the Peace Court
A justice of the peace court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences.
History
The commission of the peace was originall ...
s. 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
=
Sheriff Courts act as district criminal courts, organised by sheriffdom, and deal with cases under both summary
may refer to:
* Abstract (summary), shortening a passage or a write-up without changing its meaning but by using different words and sentences
* Epitome, a summary or miniature form
* Abridgement, the act of reducing a written work into a sho ...
and solemn procedure. Cases can be heard either before a Summary Sheriff, a Sheriff, or a Sheriff and a jury. The maximum penalty which the Sheriff Court can impose, where heard just by a Sheriff or Summary 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.[Courts of law](_blank)
Citizens Advice Bureau
Citizens AdviceCitizens Advice is the operating name of The National Association of Citizens Advice Bureaux which is the umbrella charity for a wider network of local advice centres. The abbreviation CitA is sometimes used to refer to this nation ...
, Retrieved 2011-11-24
Appeals against summary convictions and summary sentences are heard by the Sheriff Appeal Court, and decisions of the Sheriff Appeal Court can only be appealed with leave to the High Court of Justiciary
The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cour ...
and then only on questions of law In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by referenc ...
.
=High Court of Justiciary
=
More serious crimes, and appeals from solemn proceedings in the Sheriff Courts, are heard by the High Court of Justiciary
The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cour ...
. 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
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
or European law
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
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
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
as the highest civil court having taken over the judicial functions of the House of Lords and the Privy Council from 2009.
Civil courts
=Sheriff courts
=
Sheriff Courts also act as district civil courts with exclusive jurisdiction
Exclusive jurisdiction exists in civil procedure if one court has the power to adjudicate a case to the exclusion of all other courts. The opposite situation is concurrent jurisdiction (or non-exclusive jurisdiction) in which more than one court ...
over all cases worth not more than , unless they are particularly complicated or of significant importance.[Small claims actions](_blank)
Shelter Scotland, Retrieved 2011-11-24[Ordinary cause actions](_blank)
Shelter Scotland, Retrieved 2011-11-24 Personal injury actions may also be heard at the specialist all-Scotland Sheriff Personal Injury Court, which has the power to hear cases before a jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment.
Juries developed in England du ...
. Decisions of a Sheriff Court are appealed to the Sheriff Appeal Court. Further appeals are possible to the Inner House
The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is t ...
of the Court of Session, but only with the permission of either the Sheriff Appeal Court, or the Court of Session. Such appeals are granted if there is an important point of principle, or other compelling reason. Appeals may finally be taken to the Supreme Court of the United Kingdom, but only with the leave of either the Inner House or the Supreme Court itself, and it relates to a general point of public interest
The public interest is "the welfare or well-being of the general public" and society.
Overview
Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefor ...
in the law.
=Court of Session
=
Complicated or high-value cases can be heard at first instance
A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mos ...
by the Outer House
The Outer House (abbreviated as CSOH in neutral citations) is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted t ...
of the Court of Session, with the Court of Session having concurrent jurisdiction for all cases with a monetary value of more than . Decisions of the Outer House are appealed to the Inner House of the Court of Session, and (where allowed by the Inner House, or in matters relative to Devolution) 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
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
.
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 Lands Tribunal for Scotland is a tribunal with jurisdiction over land and property in Scotland, relating to title obligations, compulsory purchase and other private rights. The Tribunal was established under the Lands Tribunal Act 1949, whi ...
, the Scottish Land Court
The Scottish Land Court is a Scottish court of law based in Edinburgh with subject-matter jurisdiction covering disputes between landlords and tenants relating to agricultural tenancies, and matters related to crofts and crofters. The Scotti ...
and the Court of the Lord Lyon. The Employment Appeal Tribunal
The Employment Appeal Tribunal is a tribunal in England and Wales and Scotland, and is a superior court of record. Its primary role is to hear appeals from Employment Tribunals in England, Scotland and Wales. It also hears appeals from decisions ...
is also an example of a cross-jurisdictional tribunal.
Judiciary of Scotland
Scotland has several classes of judge who sit in the various courts of Scotland, and led by the Lord President of the Court of Session
The Lord President of the Court of Session and Lord Justice General is the most senior judge in Scotland, the head of the judiciary, and the presiding judge of the College of Justice, the Court of Session, and the High Court of Justiciary. The L ...
who is head of the Scottish judiciary by virtue of Section 2 of the Judiciary and Courts (Scotland) Act 2008
The Judiciary and Courts (Scotland) Act 2008 is an Act of the Scottish Parliament passed in October 2008 to reform the courts of Scotland, to give statutory force to judicial independence, and to establish the Lord President of the Court of Sessio ...
. The second most senior judge is the Lord Justice Clerk
The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session.
Originally ''clericus justiciarie'' or Clerk to the Court of Justiciary, the counterpart in the criminal courts of the Lord ...
, and together with the Senators they constitute the College of Justice
The College of Justice includes the Supreme Courts of Scotland, and its associated bodies.
The constituent bodies of the national supreme courts are the Court of Session, the High Court of Justiciary, the Office of the Accountant of Court, an ...
. The Senators are referred to as ''Lords of Council and Session'' when sitting in civil cases, and ''Lords Commissioners of Justiciary'' when sitting in criminal cases.
The sheriff courts are presided over by the Sheriffs Principal, Sheriffs
A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...
, and Summary Sheriffs. They will preside over both civil and criminal cases.
The most junior judges are the justices of the peace
A justice of the peace (JP) is a judicial officer of a lower or ''puisne'' court, elected or appointed by means of a commission ( letters patent) to keep the peace. In past centuries the term commissioner of the peace was often used with the sa ...
who preside over minor criminal matters in the Justice of the Peace Court
A justice of the peace court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences.
History
The commission of the peace was originall ...
s.
Legal profession
The Scottish legal profession
Legal profession is a profession in which legal professionals study, develop and apply law. Usually, there is a requirement for someone choosing a career in law to first obtain a law degree or some other form of legal education.
It is difficult to ...
has two main branches, advocates
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
and solicitors
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and ...
.[Palmer, p. 213]
Advocates, the equivalent of the English barristers, belong to the Faculty of Advocates
The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary. The Faculty of Advocates is a constit ...
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
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accorda ...
and tribunal
A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title.
For example, an advocate who appears before a court with a single ...
s, 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
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and ...
are members of the Law Society of Scotland
The Law Society of Scotland is the professional governing body for Scottish solicitors. It promotes excellence among solicitors through the support and regulation of its members. It also promotes the interests of the public in relation to the ...
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
Solicitor advocate is a hybrid status which allows a solicitor in the United Kingdom and Hong Kong to represent clients in higher courts in proceedings that were traditionally reserved for barristers. The status does not exist in most other comm ...
. Notaries public, unlike their continental equivalent, are not members of a separate profession; they must be solicitors, and most solicitors are also notaries.
See also
*List of Scottish legal cases
Leading Scottish legal cases include:
Constitutional and Public Law
* Burmah Oil Co. v Lord Advocate 965AC 75
* MacCormick v Lord Advocate 1953 SC 396
* Bannatyne v Overtoun 904AC 515
* West v Secretary of State for Scotland 1992 SC 385
*C ...
Notes
References
*Barrow, Geofrey. ''Kingship and Unity: Scotland 1000–1306''. Edinburgh University Press, 1989.
*Boyle, Alan; Himsworth, Chris; MacQueen, Hector
''Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR''
Hart Publishing, 2002.
*Bradley, Anthony Wilfred; Ewing, Keith D
''Constitutional and Administrative Law''
Pearson Education, 2007.
*Davidson, Fraser; MacGregor, Laura. ''Commercial Law in Scotland''. W. Green & Son, 2008.
*Erskine
Erskine (, sco, Erskin, gd, Arasgain) is a town in the council area of Renfrewshire, and historic county of the same name, situated in the West Central Lowlands of Scotland. It lies on the southern bank of the River Clyde, providing the l ...
, ''An Institute of the Law of Scotland''
* Gretton, George; Steven, Andrew. ''Property, Trusts and Successions''. Tottel Publishing, 2009.
*Jones, Timothy; Christie, Michael. ''Criminal Law''. W. Green & Son, 2008.
*Palmer, Veron
''Mixed jurisdictions worldwide: the third legal family''
Cambridge University Press, 2001.
*Reid, Kenneth; Zimmerman, Reinhard
''A History of Private Law in Scotland: I. Introduction and Property''
Oxford University Press, 2000.
*Reid, Kenneth; Zimmerman, Reinhard
''A History of Private Law in Scotland: II. Obligations''
Oxford University Press, 2000.
* 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.
External links
*
*
*
*
*
{{DEFAULTSORT:Scots Law