'Scots law' is a unique
legal system with an ancient basis in
Roman law. Grounded in
uncodified civil law dating back to the ''
Corpus Juris Civilis'', it also features elements of
common law with
medieval sources. Thus
Scotland has a
pluralistic, or 'mixed', legal system, of which
South Africa law is comparable, and, to a lesser degree, the partly
codified pluralistic systems of
Louisiana and
Quebec.
Since the
Acts of Union, in 1707, it has shared a
legislature with the rest of the
United Kingdom. Scotland retained a fundamentally different legal system from that of
England and Wales, but the Union brought
English influence on Scots law. In recent years, Scots law has also been affected by both
European law under the
Treaty of Rome and the establishment of the
Scottish Parliament which may pass legislation within its
areas of legislative competence as detailed by the
Scotland Act 1998.
Although there are often substantial differences between Scots law,
English law and
Northern Ireland law, much of the
law affecting day-to-day life is similar, for example, driving laws are governed by the same road traffic acts in all three
jurisdictions; and
consumer law is regulated by the same statutes and
secondary legislation. Different terminology is often used for the same concepts, for example, ''
arbiters'' are called ''arbitrators'' in England. However, there are major differences in some areas, an example being house buying, where Scots practice makes the English problem of
gazumping a rarity. Another example would be the third verdict available to
judges and
juries (which consist of 15 members) in
criminal cases: '
not proven'. The
age of legal capacity under Scots law is 16, whereas under English law it is 18.
[1][2]
Legal system
Governance and administration
Many areas of Scots law are
legislated for by the
Scottish Parliament whose authority
devolved from the
Parliament of the United Kingdom (Westminster). Areas of Scots law over which the Scottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are
reserved to Westminster such as
defence,
international relations,
fiscal and economic policy,
drugs law, and
broadcasting, amongst others. The Scottish Parliament does retain limited tax raising powers.
Minister for Justice
The
Scottish Ministers have executive responsibility for the Scottish legal system, which is headed by the
Cabinet Secretary for Justice. The Minister for Justice has political responsibility for
policing,
law enforcement, the
courts of Scotland, the
Scottish Prison Service,
fire services,
civil emergencies and
civil justice
Legal profession
The Scottish
legal profession has two main branches,
Advocates and
Solicitors.
Advocates
Advocates, the equivalent of the English
Barristers, belong to the
Faculty of Advocates which distinguishes between
junior counsel and
senior counsel, the latter also known as
Queen's Counsel. Advocates specialise in presenting cases before
courts and
tribunals, with near-exclusive (see
solicitor-advocates below) rights of audience before the higher courts, and in giving legal opinions. They usually receive instructions indirectly from clients through solicitors, though in many circumstances they can be instructed directly by members of certain (professional) associations.
Furthermore, it used to be the case that Advocates were completely immune from suit etc whilst conducting court cases and pre-trial work, as they had to act 'fearlessly and independently'; the rehearing of actions was considered contrary to
public interest; and Advocates are ''required'' to accept clients, they cannot pick and choose. However, the seven-judge English ruling of
Arthur Hall v Simmons 2000 (House of Lords) declared that none of these reasons justified the immunity strongly enough to sustain it. This has been followed in Scotland in
Wright v Paton Farrell ''obiter'' insofar as civil cases are concerned.
Solicitors
Solicitors, more numerous, are members of the
Law Society of Scotland and deal directly with their clients in all sorts of legal affairs. In the majority of cases they present their client's case to the court, and while traditionally they did not have the right to appear before the higher courts, since
1992 they have been able to apply for extended rights, becoming ''solicitor-advocates'' - see below.
A solicitor also has the opportunity to become a
notary public. These, like their continental equivalent, are members of a separate profession.
Solicitor-Advocates
While Solicitors and Advocates are distinct branches of the Scottish legal profession, there has been a blurring of this position in recent years. The Law Society of Scotland may, upon proof of sufficient knowledge through exams, practice, training etc, grant rights of audience before the higher courts to solicitors. This is due to the
Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
Courts
:''Main article:
Courts of Scotland''
★ Criminal Courts (by increasing authority)
★
★
District Court
★
★
Sheriff Court
★
★
High Court of Justiciary
★
★
High Court of Justiciary sitting as a Court of Criminal Appeal
★
★
Judicial Committee of the Privy Council in Devolution Issues
★ Civil Courts (by increasing authority)
★
★
Sheriff Court
★
★
Court of Session
★
★
★
Outer House
★
★
★
Inner House
★
★
House of Lords/
Judicial Committee of the Privy Council★
★ in Devolution Issues
★ There are also a number of specialist courts and tribunals who determine legal disputes and applications, appeal from which ultimately lies to the Sheriff court (and therefore arguably of inferior authority relative to the Sheriff Court):
★
★
Children's Hearings
★
★
Office of the Public Guardian
★ For other such courts and tribunals, appeal lies to the Court of Session:
★
★
land:
★
★
★
Scottish Land Court - agricultural tenancies and crofting rights
★
★
★
Lands Tribunal for Scotland - title and land obligations
★
★
heraldry and
genealogy:
★
★
★
Court of the Lord Lyon
★ Further there are a number of cross-border tribunals appeal from which lies ultimately to the Court of Session where the proceedings originate within Scotland:
★
★
VAT and Duties Tribunal
★
★
Asylum and Immigration Tribunal
★
★
Pensions Appeal Tribunals for Scotland
★
★
Office of the Social Security Commissioners
★
★
Employment Tribunal
Origins and historical development
By the late
11th century Celtic law applied over most of Scotland, with
Old Norse law covering the areas under
Viking control (resulting in
Udal Law still in force in
Orkney and
Shetland).
In following centuries as
Norman influence grew and
feudal relationships of
government were introduced,
Scoto-Norman law developed which was initially similar to
Anglo-Norman law but over time differences increased (especially after
1328, with the end of the
wars of Scottish Independence). Early in this process
David I of Scotland established the office of
Sheriff with civil and criminal
jurisdictions as well as military and administrative functions. At the same time
Burgh courts emerged dealing with civil and petty criminal matters, developing law on a
continental model, and the
Dean of Guild courts were developed to deal with building and public safety (which they continued to do into the mid
20th century).
From the end of the
13th century the Scottish parliament of the
Three Estates developed
Statute Laws.
Continental influence
From the
12th century the replacement of the
Celtic church by
Roman Catholicism brought
Canon law and
Church courts dealing with areas of
civil law, introducing
Roman law based on
6th century law from the
Eastern Roman empire of
Justinian. This influence extended as
Medieval Scots students of Civil or Canon Law mostly went abroad, to
universities in
Italy,
France,
Germany or the
Netherlands. (The English universities,
Oxford and
Cambridge, were closed to Scots.) The
University of St. Andrews, founded in
1413, included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The
University of Glasgow (
1451) was active in
law teaching in its early years, one
scholar there being
William Elphinstone, who then studied abroad and went on to found the
University of Aberdeen (
1495) which taught canon law until the mid
16th century. Studying on the
European mainland continued to be the norm for Scottish law students until the
18th century.
In the early
16th century a costly war pushed
James V of Scotland to do a deal with
Pope Paul III for funds in the form of a
tithe on the church in exchange for agreeing to found a
College of Justice, in
1532. By
1560 the
Reformation removed
Papal authority and Canon Law jurisdiction was taken over by the
Commissary Courts, whose jurisdiction, along with that of the Scottish
Court of Exchequer was subsumed into that of the
Court of Session in the 19th century.
United Kingdom
The
1707 Treaty of Union, confirmed in the
Act of Union, preserved the Scottish legal system, with provisions ''that the
Court of Session or
College of Justice (and the
Court of Justiciary) ... remain in all time coming within Scotland'', and that Scots Law ''remain in the same force as before''. The
Parliament of Great Britain was now unrestricted in altering laws concerning ''public right, policy and civil government'', but concerning ''private right'', only alterations for the ''evident utility of the subjects within Scotland'' were permitted. The
Scottish Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to the
Westminster parliament and the introduction of appeal to the
House of Lords brought further English influence and it is sometimes stated that this marked the introduction of
common law into the system, but Scots common law incorporates different principles and makes use of legal writings which long predate the Union (see
Legal institutions of Scotland in the High Middle Ages).
Appeal decisions by
English lords raised concerns about this appeal to a foreign system, and in the late
19th century Acts allowed for the appointment of
Scottish Lords of Appeal in Ordinary. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords. Nowadays the House of Lords judicial committee usually has a minimum of two Scottish Judges to ensure that some Scottish experience is brought to bear on Scottish appeals.
The
Scottish Highlands had been affected by Scots law but remained largely independent, with remnants of Celtic law still in force. Their involvement in
Jacobitism led to a series of Acts attempting to crush the
Scottish clan structure and bring them firmly within Scots law. The
Heritable Jurisdictions Act of
1747 removed the virtually sovereign power the chiefs had over their clan, but probably affected other hereditary offices more, with the result that
sheriffs-depute, who had actually done the work for the hereditary office holders, became
crown appointees and took over the role.
Scots law has continued to change and develop, with the most significant change coming with the establishment of the
Scottish Parliament as described below.
Sources of law
Common law
Many Scots laws are simply part of the law of the land. For example,
murder and
theft are not defined in
statute as
offences, but come under ''
common law''. This has sources in
custom, in legal writings and in previous court decisions. Unlike in English law, the use of such ''
precedents'' is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a ''precedent''.
The principles of
natural justice and
fairness have always formed a source of Scots Law and are applied by the courts without distinction from the law. Thus Scots Law does not have the complex construct of "''
Equity''" applicable in
England.
Certain texts, which come mostly from the
17th century,
18th century and
19th century can be used as authority in the courts in the absence of statute or
case law. Their authors include
Craig, ''
Jus Feudale'' (
1655) for
feudal law,
Stair, ''
The Institutions of the Law of Scotland'' (
1681) for
civil law and
David Hume (nephew of the namesake philosopher
David Hume) for
criminal law. These works may be treated as authoritative sources of the law and are described as "institutional" works. Other authorities may enjoy a particular reputation as being reliable statements of what the law is, if not absolutely authoritative. An example is Sir
Gerald Gordon's ''
Criminal Law of Scotland'', (edited by Michael Christie), 3rd edition, 2001.
Statute law
Laws can be set by both the Scottish and Westminster Parliaments, and also the
European Union.
Acts of the Parliaments can also provide for more detailed laws made by
secondary legislation known as
Statutory Instruments which are then passed through Parliament more quickly and simply than Acts.
The Scottish Parliament
Some statutes of the pre-1707
Estates of Parliament are still in force, and are written in the
Scots language. In
1999 the
devolved Scottish Parliament with legislative competence over any matter not
reserved to the
United Kingdom Parliament at
Westminster was established.
Winnie Ewing (a
Scottish National Party MSP) presided over the opening, and famously declared 'The Scottish Parliament,
adjourned on the 25th day of March in the year 1707, is hereby reconvened'.
The Westminster Parliament remains the "
sovereign legislature" as defined by
Constitutional lawyers, retaining legislative power in relation to Scotland, but the new Scottish Parliament at
Holyrood makes full use of the powers given by the devolution settlement to set laws affecting the domestic affairs of Scotland.
The powers of the Scottish Parliament are set out in the
Scotland Act 1998.
The United Kingdom Parliament
The Westminster Parliament serving the whole of the United Kingdom has set Statute law for Scotland since 1707, and continues to deal with
reserved matters. Acts of the United Kingdom Parliament can apply to the whole of the UK including Scotland, to Scotland alone or not to Scotland at all. The Scotland Act 1998 does not affect the power of the Westminster Parliament to legislate as regards Scotland, but during its passage the
Sewel Convention was established, which effectively requires the consent of the Scottish Parliament to Westminster legislation on devolved matters. Until 2007 both Parliaments were controlled by the same party (
Labour), and it remains to be seen whether this convention will continue under the
Scottish National Party minority government.
European law
European Union Regulations and many parts of the
Treaty of Rome are directly applicable as law.
EU directives passed by the
Council of Ministers require member
states to legislate to implement them.
Scottish courts are required to interpret legislation in a way compatible with the
European Convention on Human Rights. If the Scottish Parliament legislates contrary to the Convention the law can be struck down by the courts. Courts may make a declaration that an Act of the Westminster Parliament is incompatible with the Convention.
Branches of Scots law
The principal division in Scots Law is that between
public law involving the
state in some manifestation, and
private law where only private persons are involved. Public law covers
constitutional law,
administrative law and
criminal law and procedure. Private law covers those defined under ''The
Law of Persons'', including children, adults,
partnerships (where the partnership is a separate "
juristic person" from the individuals in it, which is not the case in
English law) and
limited companies.
Private law
''See also
Law of obligations.''
Contract
Contract is created by
bilateral agreement and is distinguished from
unilateral promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for ''consideration'' does not apply in Scotland, so it is possible to have a ''gratuitous'' contract, i.e. a contract where only one of the parties comes under any duties to the other (e.g. a contract to perform services for no consideration).
Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a
testamentary provision and an offer will not be a promise.
At common law, a promise had to be proved by
writ or
oath. However, after the introduction of the
Requirements of Writing (Scotland) Act 1995, a promise need only be evidenced in writing for:
• the creation, transfer, variation or extinction of an interest in land (s 1(2) (a)(i) of Requirements of Writing (Scotland) Act 1995); and
• a gratuitous unilateral obligation except an obligation undertaken in the course of business (s 1(2) (a)(ii) of Requirements of Writing (Scotland) Act 1995.) [Note that this section has caused great debate amongst academics as to the meanings of "unilateral" and "gratuitous". Some believe that the inclusion of the two terms in this section points to a desire of the drafters that they be given different meanings. This would allow some promises to be unilateral but not gratuitous. This argument was particularly discussed by both Martin Hogg (Edinburgh University) and Joe Thomson (Glasgow University) in articles for the
Scots Law Times (News) in 1998 and 1997 respectively. See also "Contract Law in Scotland", by MacQueen and Thomson (3rd edition, 2007), and "Obligations" by Martin Hogg (2nd edition, 2006).
Delict
Delict deals with the righting of legal wrongs in
civil law, on the principle of
liability for loss caused by failure in the
duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of ''
Tort'', the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as
assault,
defamation are used in both systems, their technical meanings differ.
"Delict" as a word derives from the
Latin "
delictum" and as a branch of Scots Law revolves around the fundamental concept "
Damnum Injuria Datum" - literally ''loss wrongfully caused''. Where ''A'' has suffered wrongful loss at the hands of ''B'' (generally where ''B'' was
negligent) ''B'' is under a legal obligation to make
reparation. There are many many various delicts which can be committed, ranging from ''assault'' to ''procurement of breach of contract''.
The landmark decision on establishing
negligence, for Scotland and for the rest of the United Kingdom, is the Scottish case of
Donoghue v. Stevenson ([1932] AC 562) which, while strictly a Scottish case, quickly established itself as the leading authority in the field of negligence in English Law also.
Mrs Donoghue had been enjoying an
ice cream with
ginger beer her friend had bought her in Mr Minchella's
café in
Paisley, when she emptied the
opaque ginger beer bottle out and the decomposing remains of a
snail emerged. Her distress and subsequent
illness was such that she was determined to bring an action for
damages — but the poor woman had no
contract with the café
proprietor as her friend had paid, so she sued the manufacturer for his
negligence. The case of the snail in the bottle was taken to the House of Lords who found that the manufacturer does indeed have a duty of care, subject to restrictions. This decision had influence in many countries and established the "
neighbourhood principle" in Scots Law.
Property law
Scots Law of
Property distinguishes between ''Heritable'' property, such as land and buildings, and ''Moveables'', which include including physically moveable objects, title to which normally passes only on delivery; and moveable rights including
intellectual property such as
patents,
trade marks and
copyrights. It is worth noting that agreement on an offer for property purchase is a legally binding contract, resulting in a system of
conveyancing where buyers get their
survey done before making a bid to the seller's solicitor, and after a closing date for
bids the seller's acceptance is binding on both parties, preventing
gazumping. In recent times sales of house by way of offering to sell to the first party to make an unconditional offer of a fixed price has eroded the traditional ''offers over'' system.
Feudal law
The
feudal system lingered on in Scots law on land ownership, so that a
landowner as a ''
vassal'' still had obligations to a ''
feudal superior'' including payment of ''
feu duty''. This enabled developers to impose
perpetual conditions dictating how buildings had to be constructed and maintained, but added complications and became abused to demand payments from ''vassals'' who wanted to make minor changes. In
1974 legislation began a process of redeeming ''feu duties'' so that most of these payments were ended, but it was only with the attention of the
Scottish Parliament that a
series of acts were passed to end the disadvantages while keeping the benefits of the system, the first in
2000, for
The Abolition of Feudal Tenure on
November 28 2004.
Udal law
It is worth noting that Feudal law has never existed in the Islands of
Orkney and
Shetland, which rather use a system called
Udal Law, owing to their historic ties to
Norway. However, following legal reforms in November 2004, the significance of udal law in those islands is greatly reduced.
Intellectual Property Law
Intellectual Property (IP) in Scotland is governed mostly by
statute, however it was a Scottish case
Wills v Zetnews (1997 FSR 604) that first applied the existing
copyright law to the
internet by categorising the net as a
cable programme. This definition has now been superseded by
European directives but the principle still stands.
Public law
Criminal law
Scots
criminal law relies far more heavily on the
common law than England. Scots criminal law includes offences against the person of
murder,
culpable homicide,
rape and
assault, offences against property such as
theft and malicious mischief, and public order offences such as
mobbing and
breach of the peace. Some areas of criminal law, such as
misuse of drugs and
traffic offences appear identical on both sides of
the Border. In fact, the Scots requirement of
corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment.
Crown Office and Procurator Fiscal Service
The
Crown Office and Procurator Fiscal Service provides independent
public prosecution of criminal offences in Scotland (as the more recent
Crown Prosecution Service does in
England and
Wales) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the
Lord Advocate, in whose name all prosecutions are carried out, and employs
Advocates Depute (for the
High Court of Justiciary) and
Procurators Fiscal (for the
Sheriff Courts) as
public prosecutors.
Private prosecutions are very rare in Scotland. These require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the
Lord Advocate.
"Not proven" verdict
The Scots legal system is unique in having three possible
verdicts for a criminal
trial: "
guilty", "
not guilty" and "''
not proven''". Both "not guilty" and "not proven" result in an
acquittal with no possibility of
retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the
jury to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know he did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.
In February 1999,
United States Senator Arlen Specter voted against conviction in the
impeachment trial of Bill Clinton, citing the concept of the "not proven" as a basis for his decision. Another recent example is seen in the case of Sean Flynn, 21, who stood trial at the High Court in
Perth accused of murdering his mother,
Louise Tiffney. Responding to the "not proven" verdict delivered on
16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.
However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. In a Scottish criminal trial, the burden of proof lies on the prosecution, and the guilt of the accused must be proven "beyond reasonable doubt." It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a prosecution. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not-proven verdict, alerting the prosecution to the fact that its performance and/or evidence and/or witnesses were poor.
Notable criminal cases
★
Brennan v HMA 1977 JC 38
★
Cawthorne v HMA 1968 JC 32
★
Crawford v HMA 1950 JC 67
★
HMA v Ross 1991 JC 210
★
Jamieson v HMA 1994 SLT 537
★
Khaliq v HMA 1984 JC 23
★
Smart v HMA 1975 JC 30
★
Sutherland v HMA 1994 SLT 634
References
1. Age of Legal Capacity (Scotland) Act 1991 (c. 50), opsi.gov.uk
2. "Under Scots Law (in contrast to the law in E&W), young people have full (or ‘active’) legal capacity at 16 years", Keele University
See also
★
Legal systems of the world
★
List of Leading Scottish Legal Cases
★
English law (also applies to
Wales)
★
Contemporary Welsh Law (Wales' new legal powers)
★
Northern Ireland law
★
European Union Law
★
List of Scottish topics
★
Udal Law
★
Feudal law
External links
★
Scottish Court Service Website Details of Scottish courts and caselaw.
★
Law Society of Scotland The Law Society organizes solicitors, who are 95% of all Scottish lawyers. Its site has a very good section headed 'What is Scots law'.
★
Faculty of Advocates The Faculty of Advocates organizes advocates, who are the elite 5% of Scottish lawyers including QCs.
★
Edinburgh Law School Information about law degrees, public lectures, research and publications.
★
Scottish Law Commission The Scottish Law Commission is in charge of proposals for law reform in Scotland. This site has many discussions of the law as it stands and proposals for reform.
★
Scots Law News Well-kept Scottish law blog with news of current developments.
★
The Murray Stable Collection of articles on different areas of Scots law, re-usable under
Creative Commons licence.
★
Jonathan Mitchell QC Material on how to use advocates, jurisdiction of Scottish courts, freedom of information, and much else. Weekly update of most recent cases decided in
Court of Session.
★
Govan Law Centre Material on welfare law in Scotland.
★
Scottish Legal Aid Board Material on how to get legal aid in Scotland.
★
CjScotland CjScotland includes a daily blog of links to media and other sources of information on Scottish criminal justice, original articles, parliamentary updates and so on.
★
Scottish Criminal Cases Review Commission All cases accepted by the SCCRC are subjected to a robust and thoroughly impartial review before a decision on whether or not to refer to the High Court is taken.
★
Crown Office and Procurator Fiscal Service The Crown Office and Procurator Fiscal Service (COPFS) is responsible for the prosecution of crime in Scotland, the investigation of sudden or suspicious deaths and complaints against the police.
★
Scottish Law Online Independent site providing information about Scots Law, has a bulletin board and discussion forum.
★
''Scotland and the Abolition of the Slave Trade - schools resource''
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