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The law of Scotland is a combination of statute, common law, academic writings and custom based on a historically mixed grouping of sources, which makes it a hybrid or mixed legal system.

The Parliament of the United Kingdom has authority to create, amend or revoke the law of Scotland, with the Scottish Parliament, since 1999, also having devolved powers to legislate within its legislative competence. A large body of the law is also determined by judicial precedent with the most authoritative sources being the Court of Session and Supreme Court of the United Kingdom for civil law and the High Court of Justiciary for criminal law. Appeals to the European Court of Human Rights are possible where a legal dispute involves the infringement of the European Convention on Human Rights or the Court of Justice of the European Union where European law is at issue. The publications of the institutional writers, who were a group of distinguished jurists, are recognised as a legitimate source of law in Scotland as well. Customary law is the final recognised source; however, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.

Laws in Scotland attempt to balance the need for conformity in the United Kingdom in certain legal fields, often for practical commercial reasons, while recognising the traditional uniqueness of the legal system in other areas. For example, laws concerning consumer rights, data protection, employment and immigration are reserved matters under the Scotland Act 1998, meaning that the Parliament of the United Kingdom has sole jurisdiction in these areas. The law of Scotland, however, is unique in the United Kingdom in a number of other fields, especially property and succession laws and court actions, where the involvement of a Scottish solicitor is normally required.

History

Origins

The nature of the law in Scotland before the 11th century is largely speculative but likely was a mixture of different legal traditions representing the different cultures inhabiting the land at the time, including Celtic, Welsh, Irish, Norse and Anglo-Saxon customs. It is difficult to say with any certainty to what degree the contemporary law of Scotland still incorporates these customary sources. There is evidence to suggest that as late as the 17th century marriage laws in the Highlands and Islands still reflected Celtic custom, contrary to Catholic religious principles.

Feudalism

In the 11th century, the gradual arrival of feudalism in Scotland established feudal land tenure over many parts of the south and east, which eventually spread northward. As feudalism began to develop in Scotland a number of seperate court systems developed.

Sheriffdoms (administrative divisions of the kingdom centred on a castle or burgh) were established. The sheriffs were usually appointed by the King and held court to hear a wide variety of criminal and civil matters. Feudal lords also were normally permitted to hold court where disputes between their tenants, including criminal matters, were adjudicated. By the 14th century some of these feudal courts had developed into "petty kingdoms" where the King's courts did not have authority, except for cases of treason. Burghs, towns which had been given this special status usually by the King, also had their own set of local laws dealing mostly with commercial and trade matters. The burghs themselves established their own separate court system to administer and enforce these laws. Church courts also played an important role in Scotland as they had exclusive jurisdiction over matters such as marriage and status. These church courts, unlike their lay counterparts, were generally staffed by lawyers who were trained in both Roman and Canon law and offered a more sophisticated form of justice. Litigants seem to have preferred to bring disputes before the church courts or an ecclesiastical arbiter rather than the lay courts in Scotland.

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).

Wars of Independence

During the Wars of Scottish Independence legal developments in Scotland appeared to have slowed, likely affected by the widespread social turmoil. There is some evidence that there were attempts to codify the law of the time and a small number of reforming statutes were passed by the Parliament of Scotland evidencing at least some concern for remedying deficiencies in the law.

Scotland's three oldest universities, the University of St Andrews, the University of Glasgow and the University of Aberdeen were also founded following the wars and the Education Act 1496 was passed requiring those who administered justice in Scotland to learn Latin and study law for at least 3 years at school.

The evolution of the modern Court of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.

Sources of law

Legislation

The Parliament of the United Kingdom has the power to pass statutes on any issue for Scotland. Modern statutes will specify that they apply to Scotland and may also include special wording to take into consideration unique elements of the legal system. Statutes must receive Royal Assent from the Queen before becoming law, however this is now only a formal procedure and is automatic. Legislation of Parliament of the United Kingdom is not subject to the review of the courts as the Parliament is said to have supreme legal authority; however, in practice the Parliament will tend not to create legislation which contradicts the Human Rights Act 1998 or European law, although it is technically free to do so. The degree to which the Parliament has surrendered this sovereignty is a matter of controversy with arguments generally concerning what the relationship should be between the United Kingdom and the European Union.

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

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

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

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

Common law

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

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

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

Academic writings

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

• Sir Thomas Craig of Riccarton's Jus Feudale (1655);
• Sir James Dalrymple, Viscount of Stair's Institutions of the law of Scotland (1681);
• Andrew MacDouall, Lord Bankton's An Institute of the Laws of Scotland (1751-1753);
• John Erskine of Carnock's An Institute of the Law of Scotland (1773); and,
• George Joseph Bell's Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisprudence (1804) and Principles of the Law of Scotland (1829).

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

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

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

Custom

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

Branches of the law

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

Private law

• Bankruptcy
• Company / Partnership
• Contract
• Delict
• Employment
• Family
• Inheritance
• Promise
• Property
• Trusts

Public law

• Administrative
• Constitutional
• Civil procedure
• Criminal
• Tax

Legal institutions

Executive

Main article: Scottish Government

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

Legislature

Main article: Scottish Parliament

The Scottish Parliament forms an elected legislature in Scotland that has devolved powers to legislate for certain prescribed matters (such as NHS Scotland, education, justice and policing, rural affairs, economic development and transport). It is made up of 129 members, known as Members of the Scottish Parliament (MSPs), who are elected under the mixed member proportional representation system.

Judiciary

Main article: Courts of Scotland

Criminal courts

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

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

More serious crimes and appeals from the Sheriff Court are heard by the High Court of Justiciary. There is no appeal available in criminal cases to the Supreme Court of the United Kingdom. Cases where the accused alledges a breach of the European Convention on Human Rights or European law can be referred or appealed to the Supreme Court for a ruling on the relevant alledged breach.

Civil courts

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

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

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

Specialist courts

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

References

• Barrow, Geofrey. Kingship and Unity: Scotland 1000-1306. Edinburgh University Press, 1989. ISBN 9780748601042
• Boyle, Alan; Himsworth, Chris; MacQueen, Hector. Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR. Hart Publishing, 2002. ISBN 9781841130446
• Davidson, Fraser; MacGregor, Laura. Commercial Law in Scotland. W. Green & Son, 2008. ISBN 9780414016101
• Erskine, An Institute of the Law of Scotland
• Gretton, George; Steven, Andrew. Property, Trusts and Successions. Tottel Publishing, 2009. ISBN 9781845921538
• Palmer, Veron. Mixed jurisdictions worldwide: the third legal family. Cambridge University Press, 2001. ISBN 9780521781541
• Smith, Thomas. A Short Commentary on the Law of Scotland. Green & Son Ltd, 1962.
• The Laws of Scotland: Stair Memorial Encyclopaedia
• Tetley, William Q.C. Mixed Jurisdictions: common law vs. civil law (codified and uncodified). 4 Uniform L. rev. (N.S.), 1999.
• White, Robin; Willock, Ian. The Scottish Legal System. Tottel Publishing, 2007. ISBN 9780406005717