Scots law is a unique
legal system which has roots in
many different sources of
law. Up until the
mid-tenth century, the law in Scotland was almost certainly Celtic,
but after then,
feudal and
canon law gradually took over. On succeeding to
the throne in 1124CE, King
David
I introduced elements of Anglo-Norman laws and
legal institutions, such as
sheriffs and justices. Scots law's first known
text,
Regiam Majestatem, was based
heavily on
Glanvill's
English law treatise,
although it also contains elements of
civil law,
feudal law,
canon law,
customary law and native Scots
statutes.
Although there was some indirect
Roman law
inflence on Scots law, via the
civil law
and
canon law used in the
church courts, the direct influence of Roman
law was slight up until around the mid-fifteenth 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. Thus
comparative law classifies Scots law as a
mixed legal system, a group that
also contains
South African law
and the legal systems of
Louisiana,
Quebec and
Puerto Rico.
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 European law under the
Treaty of Rome, the requirements of
the European
Convention on Human Rights (entered into by members of the
Council of Europe) and the
establishment of the Scottish Parliament
which may pass legislation within its areas of legislative
competence as detailed by the Scotland Act 1998.
There are substantial differences between Scots Law,
English law and
Northern Ireland law in areas such as
property law,
criminal law,
trusts
law,
inheritance law,
evidence law and
family
law while there are greater similarities in areas of national
interest such as
commercial law and
taxation law. Some of the more
important practical differences between the
jurisdictions include the
age of legal capacity (16 years old in
Scotland, 18 years old in England), the use of a 15 member jury in
Scotland rather than the usual 12 members, the fact that the
accused in a criminal trial does not have the right to elect a
judge or
jury trial,
judges and juries of criminal trials have the "third verdict" of
"
not proven" available to them, and the
fact that
Equity does not exist in
Scots law. Some of the more important practical similarities
between the
jurisdictions include the
similar protections for consumers under the
Sale of Goods Act 1979, very similar
treatment under various
taxation
legislation and similar protections for employees and agents.
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 has been granted limited
tax raising powers.
Minister for Justice
The
Scottish Government has
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 upper echelon
of the latter being designated
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 while 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 Act 1990.
Courts
- Criminal Courts (by increasing authority)
- Civil Courts (by increasing authority)
- 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):
- For other such courts and tribunals, appeal lies to the Court
of Session:
- 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:
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 very
limited 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
Some Scots common law is based on the 6th century system of
Roman law which applied in the
Eastern Roman empire around the time of
Justinian.
This occurred
because, prior to the Reformation in 1560, much of the
jurisdiction of private law came under the Church courts administering Canon law with an ultimate right
of appeal to the Papal court at Rome
. This
was the basis of matrimonial law, and influenced branches such as
the law of succession and contract law.
For centuries
Scotland was more in touch with mainland European countries than with neighbouring England, and many
Scots lawyers had part of their legal education abroad,
particularly in the Netherlands
. As a result they were influenced by
studying Roman law in continental universities.
From the 12th century the assimilation of the
Celtic church into the
Roman Catholic Church brought
Canon law and
Church courts dealing with areas of
civil law.
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, or anyone who did not
subscribe to the articles of the Church of England, until the mid 19th
century.) The University of St. Andrews
(1410) 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. One of the reasons for this concession was to
guarantee the support of the influence Edinburgh lawyers for the
idea of the union with England, an idea which was opposed by many
Scots.
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 Supreme Court
of the United Kingdom
usually has a minimum of two Scottish justices to
ensure that some Scottish experience is brought to bear on Scottish
appeals .
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
Legislation
The United Kingdom Parliament
The
United Kingdom
Parliament has the power to legislate on any issue for
Scotland. The
Human Rights
Act 1998, the
Scotland Act
1998 and the
European
Communities Act 1972 have special status in the United Kingdom,
and therefore the law of Scotland.
Acts of the United Kingdom Parliament also regularly delegate
powers to Ministers of the Crown or other bodies to produce
legislation known as statutory instruments. This legislation has
legal effect in Scotland so far as the specific statutory
instrument is meant to.
The Human Rights Act 1998
This Act of the United Kingdom Parliament incorporated most of the
European Convention
on Human Rights into domestic UK law. This has had the effect
that the Scottish Courts now have an obligation to interpret the
common law and statutes in such a way that, where possible, the law
of Scotland is compatible with the European Convention on Human
Rights. The Scottish Parliament also cannot create legislation that
contravenes the European Convention on Human Rights; if they did,
the new law would be void.
European Community legislation
Various legislative and judicial acts of the
European Union have either direct or indirect
legal effect in Scotland. The Scottish Parliament's legislation
cannot contravene European Community law.
The new Scottish Parliament
The
Scottish
Parliament created by the Scotland Act 1998 has the power to
legislate on specific devolved issues for Scotland. The
powers of the legislature are limited in that they can only
legislate on devolved issues and must not contravene the
Human Rights Act 1998 or the
European Communities Act
1972.
Acts of the Scottish Parliament also regularly delegate powers to
the Scottish Ministers and other bodies to produce statutory
instruments. This legislation has legal effect in Scotland.
The old Scottish Parliament
Some Acts of the Old Scottish Parliament, known as the
Estates of Parliament, are still in
force in Scotland, such as the
Royal Mines Act 1424 or the
Leases Act 1449. These Acts are written in
Scots, but still remain in use today by the legal profession,
especially the
Leases Act
1449.
The Common Law
Common Law is developed through
decisions of
courts and
similar tribunals. The
Courts of
Scotland are chiefly responsible for the development of the
Common Law in Scotland. The principle of
the
Common Law is that higher court
decisions bind the lower courts.
The highest civil court in Scotland is
the Supreme Court of the United
Kingdom, which also hears devolution issues, and the
highest criminal court is the High Court of Justiciary
.
Scottish judges will often use cases decided by Scottish courts,
however, they are also able to take into consideration decisions
made by foreign courts, although these decisions will only be
persuasive not binding on the Court.
As, until
2009, the House of Lords acted as the highest court of appeal for civil
actions both in Scotland and England and Wales this has led to, at
times in history, a diffusion of English law into Scots law.
This has resulted in the merging of Scottish and English
Common Law on many issues, often resulting in
strained interpretations of Scots law.
The Institutional Writers
From the mid-17th century to the early 19th century various writers
in Scotland attempted the
codification or explanation of Scots Law
on various topics and issues, mirroring the
Corpus Iuris Civilis. These works can
be used as sources of law before Scottish courts, although other
sources will have primacy over them. The list of the Institutional
Writers and their works is contested, although it certainly
includes
Stair's work,
"Institutions of the Law of Scotland". Other potential writers
include Sir Thomas Craig, Sir George Mackenzie, Prof. John Erskine,
Baron David Hume, Prof. George Joseph Bell, and many others.
Custom
Customary practices of communities may be considered an
authoritative source of law in Scotland, although it is rarely, if
ever, used today. The most recent case in which it was used was
decided in 1890. Custom law was recognized by the Institutional
Writers who pointed to the use of
Udal Law
in some parts of Scotland as an example of its exercise.
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
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
testament 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 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, but also by
deliberate acts or where
strict
liability applies)
B is under a legal obligation to
make
reparation. The fundamental
concept in the Scots law of delict is that the pursuer should be
put, as far as possible, into the position he would have been in
had the delict not been committed; unlike
English law, there is never a penal element to
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 S.C. (HL) 31 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.
Interestingly owing to quirks of the case it was never established
that the drink was
ginger beer in the
literal sense.
It is common in Paisley and surrounding areas to use the term 'ginger' to
describe a variety of carbonated drinks. The case however
proceeds on the assumption that
ginger
beer was served in
opaque
bottles preventing discovery of the
snail, had
it actually been a clear bottle the case may have gone differently.
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 "
neighbour principle" in
Scots Law. After the question of if there were grounds for action
was answered "the action was settled before any proof was held" and
it has never been proven, before a court, that the snail had
entered the bottle at all.
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
written acceptance of a written offer for property purchase is a
legally binding contract.
Hitherto this meant that purchasers were advised to survey the
property and have finance in place prior to offering. That practice
resulted in wasted time and expense where the purchase did not
proceed. Around 2005 practice has changed to offering subject to
survey not unlike the English system, then later in 2008 Home
Information Packs were introduced and a single survey is paid for
by the seller and made available to all interested parties.
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 was passed to end the disadvantages while keeping the
benefits of the system; the first in 2000, the Abolition of
Feudal Tenure etc. Act 2000, coming into force on November 28 2004.
Udal law
The
Northern Isles used a system called
Udal Law, owing to their former status as
territory of 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
internet 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 Common Law than in 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:
"
guilt", "
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 they did it but there isn't
enough proof". The verdict, especially in high profile cases, often
causes controversy.
Misconception of the Scots "not proven" concept has occasionally
inspired legal decision or commentary in other countries.
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, 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,
as in an English one, 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
Scots administrative law
Scots civil procedure
Scots family law
See also
References
External links
- Scottish Courts Case Reports, Employment Tribunal Case Reports,
Legal Opinions, Comments and Analysis.
- Details of Scottish courts and case law.
- The Law Society of Scotland organizes solicitors, which
comprise 95% of all Scottish lawyers. The site has a section headed
'What is Scots law'.
- The Faculty of Advocates organizes advocates, which comprise 5%
of Scottish lawyers.
- Law degree, public lecture, research and publication
information.
- Scottish law blog with news of current developments.
- The Scottish Law Commission is in charge of proposals for law
reform in Scotland. This site has discussions of current law and
reform proposals.
- Blog of Scottish criminal and procedural law.
- Collection of articles on different areas of Scots law,
re-usable under Creative
Commons license.
- 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.
- Material on welfare law in Scotland.
- Material on how to get legal aid in Scotland.
- This includes a daily blog of links to media and other
information sources on Scottish criminal justice, original
articles, parliamentary updates and so on.
- 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.
- The COPFS is responsible for criminal prosecution in Scotland,
the investigation of sudden or suspicious deaths and complaints
against the police.
- This site provides information about Scots Law through a
bulletin board and discussion forum.
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