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Scots law () is the
legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...
of
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
. 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 omniprese ...
elements, that traces its roots to a number of different historical sources. Together with
English law 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, b ...
and Northern Ireland law, 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 langua ...
in most of the country, with the Britons and
Anglo-Saxons The Anglo-Saxons were a 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-Saxons happened ...
in some districts south of the Forth and with the Norse in the islands and north of the River Oykel. 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 structu ...
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 1066 ...
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 J ...
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 Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
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 laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
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 En ...
. 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 The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...
) 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 1998Devolved and reserved matters explained
,
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
, 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 Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Ju ...
: England and Wales, Scotland, and Northern Ireland. There are important differences between Scots law,
English law 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, b ...
and
Northern Irish 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 ...
in areas such as
property law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual pro ...
,
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most 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,
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 ...
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 Commercial law, also known as mercantile law or trade law, is the body of law that applies to the rights, relations, and conduct of persons and business engaged in commerce, merchandising, trade, and sales. It is often considered to be a branc ...
, 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 Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the diff ...
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 A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
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 signific ...
. * Judges and juries of criminal trials have the "third verdict" of '' not proven'' available to them. * The requirement for corroborating evidence 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 or
Crown Court The Crown Court is the court of first instance of England and Wales responsible for hearing all indictable offences, some either way offences and appeals lied to it by the magistrates' courts. It is one of three Senior Courts of England and W ...
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 A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
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,
feudal law 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 ...
,
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 t ...
,
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'' 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 Gaelic is an adjective that means "pertaining to the Gaels". As a noun it refers to the group of languages spoken by the Gaels, or to any one of the languages individually. Gaelic languages are spoken in Ireland, Scotland, the Isle of Man, an ...
,
Welsh Welsh may refer to: Related to Wales * Welsh, referring or related to Wales * Welsh language, a Brittonic Celtic language spoken in Wales * Welsh people People * Welsh (surname) * Sometimes used as a synonym for the ancient Britons (Celtic peopl ...
, Norse and
Anglo-Saxon The Anglo-Saxons were a 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-Saxons happened wit ...
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 1 ...
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, established what are approximately the boundaries of contemporary mainland Scotland. The
Outer Hebrides The Outer Hebrides () or Western Isles ( gd, Na h-Eileanan Siar or or ("islands of the strangers"); sco, Waster Isles), sometimes known as the Long Isle/Long Island ( gd, An t-Eilean Fada, links=no), is an island chain off the west coas ...
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 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 structu ...
was gradually introduced to Scotland and established
feudal land tenure Under the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpe ...
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 eventuall ...
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
burgh A burgh is an autonomous municipal corporation in Scotland and Northern England, usually a city, town, or toun in Scots. This type of administrative division existed from the 12th century, when King David I created the first royal burghs. Bur ...
s 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 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 J ...
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 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 James V (10 April 1512 – 14 December 1542) was King of Scotland from 9 September 1513 until his death in 1542. He was crowned on 21 September 1513 at the age of seventeen months. James was the son of King James IV and Margaret Tudor, and du ...
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 The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburg ...
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 The Glorious Revolution; gd, Rèabhlaid Ghlòrmhor; cy, Chwyldro Gogoneddus , also known as the ''Glorieuze Overtocht'' or ''Glorious Crossing'' in the Netherlands, is the sequence of events leading to the deposition of King James II and ...
and the Claim of Right 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 ...
in Scotland, and the
Acts of Union 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 t ...
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 Anglo-Saxon kingdoms, until 1 May 1707, when it united with Scotland to form the Kingdom of Great Britain. On ...
to form the new
Kingdom of Great Britain The Kingdom of Great Britain (officially Great Britain) was a 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 Union 1707, wh ...
. 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 The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburg ...
and
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 ...
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 advise ...
to form the
Parliament of Great Britain The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a new unified Kingdo ...
, with its seat in the
Palace of Westminster The Palace of Westminster serves as the meeting place for both the House of Commons and the House of Lords, the two houses of the Parliament of the United Kingdom. Informally known as the Houses of Parliament, the Palace lies on the north b ...
,
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 n ...
polity), separately from the rest of the country. The
Parliament of Great Britain The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a new unified Kingdo ...
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 The Scottish Enlightenment ( sco, Scots Enlichtenment, gd, Soillseachadh na h-Alba) was the period in 18th- and early-19th-century Scotland characterised by an outpouring of intellectual and scientific accomplishments. By the eighteenth century ...
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 Westminst ...
(now, by appeal to the new
Supreme Court of the United Kingdom The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
) 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 Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...
. 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 The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
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 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 ...
and the reformation of the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
.


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 A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made ...
. 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 t ...
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 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 t ...
, Scotland has shared a
legislature A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
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 continental mainland. It comprises England, Scotland, Wales and ...
. 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 En ...
, 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 ...
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 The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...
) and the establishment of the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
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 suprem ...
has the power to pass
statutes A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made ...
on any issue for Scotland, although under the
Sewel convention A legislative consent motion (LCM, also known as a Sewel motion in Scotland) is a motion passed by either the Scottish Parliament, Senedd, or Northern Ireland Assembly, in which it consents that the Parliament of the United Kingdom may (or may ...
it will not do so in devolved matters without the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
's consent.Bradley & Ewing
p. 22p. 64
/ref> The
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
, 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 country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
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 regnant, queen, which title is also given to the queen consort, consort of a king. *In the context of prehistory, antiquity and contempora ...
before becoming law, 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 suprem ...
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 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
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 continental mainland. It comprises England, Scotland, Wales and ...
and the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
. 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 instrument In many countries, a statutory instrument is a form of delegated legislation. United Kingdom Statutory instruments are the principal form of delegated or secondary legislation in the United Kingdom. National government Statutory instrumen ...
s. 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 The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
is a devolved
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 laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
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 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
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 The Protection of Wild Mammals (Scotland) Act is an Act of the Scottish Parliament passed in February 2002, making Scotland the first part of the United Kingdom to ban traditional fox hunting and hare coursing. Passage of the Act The bill was int ...
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 suprem ...
, 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, p ...
, 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 regnant, queen, which title is also given to the queen consort, consort of a king. *In the context of prehistory, antiquity and contempora ...
, and the
Leases Act 1449 The Leases Act 1449 (c. 6) is an Act 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 parl ...
, which is still relied on today in
property law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual pro ...
cases. Legislation which forms part of the law of Scotland should not be confused with a
civil code A civil code is a codification of private law relating to property, family, and obligations. A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
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 omniprese ...
is an important legal source in Scotland, especially in
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most 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 and certain rulings of the
Supreme Court of the United Kingdom The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
(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 Westminst ...
).The Criminal Courts
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. In criminal cases the highest appellate court is the
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 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, 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 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 ...
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 The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
(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 Westminst ...
) 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 continental mainland. It comprises England, Scotland, Wales and ...
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 listStair, 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'', pro ...
's ''An Institute of the Law of Scotland (1773)''; and, *
George Joseph Bell George Joseph Bell (26 March 177023 September 1843) was a Scottish advocate and legal scholar. From 1822 to 1843 he was Professor of Scots Law at the University of Edinburgh. He was succeeded by John Shank More. Early life George Bell was bor ...
'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'', pro ...
'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 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 ...
''. 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 1 ...
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'', pro ...
, 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 in
Orkney Orkney (; sco, Orkney; on, Orkneyjar; nrn, Orknøjar), also known as the Orkney Islands, is an archipelago in the Northern Isles of Scotland, situated off the north coast of the island of Great Britain. Orkney is 10 miles (16 km) north ...
and
Shetland Shetland, also called the Shetland Islands and formerly Zetland, is a subarctic archipelago in Scotland lying between Orkney, the Faroe Islands and Norway. It is the northernmost region of the United Kingdom. The islands lie about to the n ...
. 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 ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
. 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 regnant, queen, which title is also given to the queen consort, consort of a king. *In the context of prehistory, antiquity and contempora ...
.''Answers to Frequently Asked Questions''
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 portfolios 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 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 Cabinet Secretary for Justice and Veterans, commonly referred to as the Justice Secretary, is a position in the Scottish Government Cabinet. The Cabinet Secretary has overall responsibility for law and order in Scotland. The Cabinet Secret ...
. The Justice Secretary has political responsibility for
policing The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...
, law enforcement, the courts of Scotland, 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 Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the United States, the term refers to non- criminal law. The law r ...
.


Legislature

Many areas of Scots law are legislated for by the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
, in matters devolved 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 suprem ...
. Areas of Scots law over which the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
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 ...
, 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 began wi ...
. 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 A legislative consent motion (LCM, also known as a Sewel motion in Scotland) is a motion passed by either the Scottish Parliament, Senedd, or Northern Ireland Assembly, in which it consents that the Parliament of the United Kingdom may (or may ...
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 The Court of the Lord Lyon (the Lyon Court) is a standing court of law, based in New Register House in Edinburgh, which regulates heraldry in Scotland. The Lyon Court maintains the register of grants of arms, known as the Public Register of All ...
, 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 Non-ministerial government departments (NMGDs) are a type of department of the United Kingdom government that deal with matters for which direct political oversight has been judged unnecessary or inappropriate. They are headed by senior civil s ...
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 The judiciary of Scotland are the judicial office holders who sit in the courts of Scotland and make decisions in both civil and criminal cases. Judges make sure that cases and verdicts are within the parameters set by Scots law, and th ...
.)


Criminal courts


=Justice of the peace courts

= Less serious criminal offences which can be dealt with under summary procedure 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 A sheriffdom is a judicial district in Scotland, led by a sheriff principal. Since 1 January 1975, there have been six sheriffdoms. Each sheriffdom is divided into a series of sheriff court districts, and each sheriff court is presided over by a r ...
, 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
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 The Sheriff Appeal Court is a court in Scotland that hears appeals from summary criminal proceedings in the sheriff courts and justice of the peace courts, and hears appeals on bail decisions made in solemn proceedings in the sheriff cou ...
, 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.


=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 The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
, 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 Westminst ...
as the highest civil court having taken over the judicial functions of the House of Lords and the
Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mo ...
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 cour ...
over all cases worth not more than , unless they are particularly complicated or of significant importance.Small claims actions
Shelter Scotland, Retrieved 2011-11-24
Ordinary cause actions
Shelter Scotland, Retrieved 2011-11-24
Personal injury actions may also be heard at the specialist all-Scotland
Sheriff Personal Injury Court The Sheriff Personal Injury Court is a Scottish court with exclusive competence over claims relating to personal injury where the case is for a work-related accident claim in excess of , where the total amount claimed is in excess of , or wh ...
, 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 d ...
. Decisions of a Sheriff Court are appealed to the
Sheriff Appeal Court The Sheriff Appeal Court is a court in Scotland that hears appeals from summary criminal proceedings in the sheriff courts and justice of the peace courts, and hears appeals on bail decisions made in solemn proceedings in the sheriff cou ...
. Further appeals are possible to the Inner House 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 The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
, 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 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 ...
of the Court of Session, with the Court of Session having
concurrent jurisdiction Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in th ...
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 A children's hearing is part of the legal and welfare systems in Scotland; it aims to combine justice and welfare for children and young people. As of 31 March 2020, 8,875 of Scotland's children were subject to a compulsory supervision order. ...
, the Lands Tribunal for Scotland, 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 Scott ...
and the
Court of the Lord Lyon The Court of the Lord Lyon (the Lyon Court) is a standing court of law, based in New Register House in Edinburgh, which regulates heraldry in Scotland. The Lyon Court maintains the register of grants of arms, known as the Public Register of All ...
. 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 decision ...
is also an example of a cross-jurisdictional tribunal.


Judiciary of Scotland

Scotland has several classes of
judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
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 second most senior judge is the Lord Justice Clerk, 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 trans ...
, 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 sam ...
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 has two main branches, advocates 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
barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and givin ...
s, 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 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


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