Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources.[1][2] With English law and Northern Irish law it forms the legal system of the United Kingdom;[3] it shares with the two other systems some elements but it also has its own unique sources and institutions.
The law in Scotland was Celtic until the Anglo-Norman era, but after that point, feudal and gradually common law began to establish itself. On succeeding to the throne in 1124, King David I introduced elements of Anglo-Norman laws and legal institutions, such as sheriffs and justices. An early Scottish legal compilation, Regiam Majestatem, was based heavily on Glanvill's English law treatise, although it also contains elements of civil law, feudal law, canon law, customary law and native Scots statutes. Although there was some indirect Roman law influence on Scots law, via 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.[4] 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.
Since the Acts of Union 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.[5][6]
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The United Kingdom is a state consisting of three legal jurisdictions: (a) England and Wales, (b) Scotland and (c) Northern Ireland.[3] There are substantial differences between Scots Law, English law and Northern Irish law in areas such as property law, criminal law, trusts law,[7] inheritance law, evidence law and family law while there are greater similarities in areas of national interest such as commercial law, consumer rights,[8] taxation, employment law and health and safety regulations.[9]
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),[10][11] the use of 15-member juries for criminal trials in Scotland (compared with 12-member juries in England) who always decide by simple majority,[12] the fact that the accused in a criminal trial does not have the right to elect a judge or jury trial,[12] judges and juries of criminal trials have the "third verdict" of "not proven" available to them,[13] and the fact that equity does not exist as a distinct branch of Scots law.[14]
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.
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.[15]
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.
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 influential 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.[16]
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 (Scotland) Act 1746 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.
The Parliament of the United Kingdom has the power to pass statutes on any issue for Scotland, although under the Sewel convention will not do so in devolved matters without the Scottish Parliament's consent.[17][18] The Human Rights Act 1998, the Scotland Act 1998 and the European Communities Act 1972 have special status in the law of Scotland.[19] 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.[20] Legislation of the 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.[21] 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.[22][23] 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 Scottish Parliament is a devolved unicameral legislature that has the power to pass statutes only affecting Scotland on matters within its legislative competence.[6] 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.[24][25] 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.[26] Legislation passed by the Scottish Parliament also requires Royal Assent which, like with the Parliament of the United Kingdom, is automatically granted.[27]
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.[28]
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.[29] All levels of Scottish courts are required to enforce European law.[30] 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.[31]
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 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.[32] 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).[33] 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.[34] 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.[33] 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.[35] 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.[35][36][37]
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.[38]
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.[39] The generally accepted list[40] of institutional works are:
Some commentators[40] would also consider the following works to be included:
The recognition of the authority of the institutional writers was gradual and developed with the significance in the 19th century of stare decisis.[39] 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".[42]
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."[43] 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.[44] Some examples do persist in Scotland, such as the influence of Udal law in Orkney and Shetland.[45] However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.[46]
The Scottish Government, led by the First Minister, is responsible for formulating policy and implementing laws passed by the Scottish Parliament.[47] The Scottish Parliament nominates one of its Members to be appointed as First Minister by the Queen.[48] 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[49] and Solicitor General[48] 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".
The Scottish Government has executive responsibility for the Scottish legal system, with functions exercised by the Cabinet Secretary for Justice. The Cabinet Secretary for Justice has political responsibility for policing, law enforcement, the courts of Scotland, the Scottish Prison Service, fire services, civil emergencies and civil justice.
Many areas of Scots law are legislated for by the Scottish Parliament, in matters devolved from the Parliament of the United Kingdom. Areas of Scots law over which the Scottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others.[6] However, certain powers are reserved to Westminster including defence, international relations, fiscal and economic policy, drugs law, and broadcasting. The Scottish Parliament also has been granted limited tax raising powers. Although technically the Parliament of the United Kingdom retains full power to legislate for Scotland, under the Sewel convention it will not legislate on devloved matters without the agreement of the Scottish Parliament.[18]
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.[50]
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.[51]
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,[51] except regarding devolution matters.[52] Cases where the accused alledges a breach of the European Convention on Human Rights or European law can also be referred or appealed to the Supreme Court for a ruling on the relevant alledged breach.
Sheriff Courts also act as regional civil courts and deal with most cases, unless they are particularly complicated or involve large sums of money.[53][54] 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.[54] 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.[55]
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.
The Scottish legal profession has two main branches, Advocates and Solicitors.[56]
Advocates, the equivalent of the English Barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the latter being designated Queen's Counsel. Advocates specialise in presenting cases before courts and tribunals, with near-exclusive (see solicitor-advocates) 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 J.S. Hall & Co. (a firm) v. Simons 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 (2006) obiter insofar as civil cases are concerned.
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.
A Solicitor also has the opportunity to become a notary public. These, unlike their continental equivalent, are not members of a separate profession. Most Solicitors will be Notaries but Notaries must be Solicitors and cannot operate independently.
While Solicitors and Advocates are distinct branches of the Scottish legal profession, this position has been blurred since 1992. The Law Society of Scotland may, upon proof of sufficient knowledge, grant rights of audience before the higher courts to Solicitors, who then become known as Solicitor Advocates.
The principal division in Scots law is between private law (laws governing the relationship between people[57]) 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.
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