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Last update: 23-07-2007
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Legal order - Scotland

 

TABLE OF CONTENTS

Primary Legislation Primary Legislation
Secondary Legislation Secondary Legislation
The Courts The Courts
The Institutional Writers The Institutional Writers
Other National Sources Other National Sources
European Community Law European Community Law
International Sources International Sources

 

The principal sources of law in Scotland are Acts of the Scottish Parliament; Acts of the UK Parliament; Scottish Statutory Instruments; UK Statutory Instruments and other subordinate legislation; the common law as developed through or expressed by judicial decisions; the works of the Institutional Writers (eminent Scottish jurists of earlier centuries) and European Community law. The Scotland Act 1998 is particularly important as the UK legislation which creates and devolves power to the Scottish Parliament. It restored to Scotland following a referendum the separate Parliament which had been lost at the time of the Union with England and Wales in 1707. However, as Scotland continues to be part of the UK, the UK Parliament is still able to legislate in certain areas.

As in England and Wales, civil law in Scotland is not set out in any general code.

The roots of Scots law are different from those of English law. Some areas of Scots law are ultimately derived from principles of Roman law. Continental legal systems were also influential in the early development of Scots law. However, in more recent history there has also been much shared development with the rest of the UK.

Primary Legislation

Primary legislation may still be made by the UK Parliament at Westminster. For further details please see the details for England and Wales.

Primary legislation may also be made by the Scottish Parliament at Holyrood, in the subject areas which are devolved to it under the Scotland Act 1998. These include: health; education; local government; social work; housing; planning; tourism and economic development; some aspects of transport; Justice, Freedom and Security including most aspects of private law and criminal law; police and fire services; many aspects of the environment; agriculture and fisheries; sport and the arts and implementation of international obligations in devolved areas.

By constitutional convention (a practice which is not legally binding but which is invariably followed), the UK Parliament will not legislate on issues which are devolved to the Scottish Parliament without the express consent of the latter given in a vote. This occasionally does happen, for instance where the measure is a useful part of a broader package which is reserved to the UK Parliament.

The Scottish Parliament is directly elected and consists of 129 Members of the Scottish Parliament (MSP’s) sitting in a single chamber (there is no equivalent of the House of Lords). The voting system uses both single member constituencies and regional lists. The latter are there to ensure sufficient proportionality in the overall result. The Scottish Parliament chooses Ministers (“the Scottish Ministersâ€�), led by the First Minister, to run the devolved administration in Scotland.

A Bill may be introduced by a Scottish Minister, by any other MSP as an individual, or by the Convenor of a Committee of the Scottish Parliament on behalf of that Committee. There are a number of procedures for different types of Bill, but the most common one involves the following:-

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  1. Consideration of the general principles of the Bill by the parliamentary committee for the relevant subject area (this includes the taking of evidence from witnesses), followed by a debate and vote in the Parliament on those general principles (Stage One);
  2. Consideration of the detail of the Bill in the relevant committee, where amendments may be tabled (Stage Two);
  3. A final debate and vote in the Parliament to decide whether the Bill should be passed or rejected, with a final opportunity for amendments to be taken on the floor of the Parliament (Stage Three).

The first two stages may extend over a significant period if the complexity of the Bill demands it.

A comprehensive explanation of the legislative process can be found on the website of the Scottish Parliament.

When a Bill has passed through its parliamentary stages, it is submitted to the Queen for Royal Assent, after which it becomes an Act of the Scottish Parliament. By constitutional convention, Royal Assent is never refused.

In the first session of the Scottish Parliament (1999-2003), 62 Bills were passed, on subjects ranging from salmon conservation to the International Criminal Court.

An Act will come into effect on the day of the Royal Assent unless it contains provisions to the contrary. In practice, most Acts specify a commencement date some time later than this, or give the Scottish Ministers the power to bring the Act (or parts of it) into force by making a Commencement Order (a form of Scottish Statutory Instrument- see below).

Disputes about the interpretation of Acts of the Scottish Parliament may be resolved by the courts, which may also be called on to decide whether an Act or part of it is within the legislative competence of the Scottish Parliament. A measure might be outside legislative competence because it is primarily concerned with a measure reserved to the UK Parliament by the Scotland Act 1998. However, if a measure is contrary to European Community law or to the European Convention on Human Rights then it will be outside legislative competence for that reason. Such a finding will be avoided if there is any way of interpreting the measure more narrowly to bring it within competence. A measure which is outside competence has no effect.

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For interpretation and status of UK Acts of Parliament, see the section on England and Wales.

Secondary Legislation

For UK Statutory Instruments (SI’s), see the section on England and Wales.

Scottish Statutory Instruments (SSI’s) may also be adopted where an Act of the Scottish Parliament delegates power to do so, or where the power conferred by an old Act of the UK Parliament has now transferred to the Scottish Ministers because the subject area is devolved. In 2003 there were 623 Scottish Statutory Instruments.

The procedure for scrutiny of SSI’s is broadly similar to that for SI’s at Westminster. The Subordinate Legislation Committee of the Scottish Parliament has a general scrutiny role, and subject committees will also consider the policy behind any instrument which requires to be approved by the Parliament (affirmative resolution), or which may be annulled by the Parliament (negative resolution).

SSI’s may be declared invalid on grounds similar to those applying in England and Wales. In addition, issues of legislative competence could be raised in relation to the parent Act (if it was an Act of the Scottish Parliament) or the SSI itself.

The Courts

The Scottish civil courts are organised in a hierarchy. The lower court is the sheriff court, presided over by a judge known as the sheriff. There are 49 of these in Scotland, organised into 6 sheriffdoms covering different geographical regions. Each sheriff court within the sheriffdom also has its own local jurisdiction. The senior sheriff in each sheriffdom is known as the Sheriff Principal.

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The sheriff courts deal with the largest volume of business. They can deal with three types of action. The small claim is for cases with a value of up to £750. The procedure is designed to be very simple to operate, and appeal can go no further than the Sheriff Principal. Even the Sheriff Principal may only be appealed to on a point of law. The summary cause is for cases with a value of over £750 and up to £1500. Appeal is again to the Sheriff Principal on a point of law only, but if the Sheriff Principal certifies the case as suitable for further appeal it can then go to the Inner House of the Court of Session. The ordinary cause is for all other claims. An appeal from a decision in an ordinary cause may be made either to the Sheriff Principal and then on to the Inner House of the Court of Session, or directly to the Inner House of the Court of Session.
The sheriff courts have exclusive jurisdiction over all cases which do not exceed £1500 in value, excluding interest and expenses. There is no upper financial limit on cases which may be brought in the sheriff courts.

For a detailed list of sheriff courts and their locations please log on to the Scottish Court Website.

The Court of Session is the higher court. It is located only in Edinburgh and is divided into two Houses. The Outer House is a court of first instance, and the Inner House is largely a court of appeal. There are twenty-two Lords Ordinary sitting in the Outer House. Actions in the Outer House are presided over by a single judge. Appeal can be made from the Outer House to the Inner House. The Inner House has two divisions of five judges, each of which is of equal importance. A minimum of three members of the division will sit to hear a case. The Inner House can also convene larger groups of judges to hear an appeal, depending on the complexity and importance of the legal issues to be decided.

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Appeal may ultimately be made from the Inner House to the House of Lords in London, but this is a rare occurrence. The House of Lords includes judges specifically qualified in Scots law, and there will be Scottish representation on any Scottish appeal.

In addition, there is the possibility of seeking a ruling from the European Court of Justice, which is the highest authority on the interpretation of European Community law.

The courts specified above deal with the bulk of civil business, although there are certain specialist tribunals.

Judicial decisions are an important source of law in Scotland, elaborating on the core principles of Scots law and filling in the gaps left by statute law, as well as interpreting legislation.

In general, a court will regard itself as bound by the decision of another court in the direct line above it in the hierarchy, although this doctrine is not absolutely rigid. As in England and Wales, where the court does regard itself as bound this will only apply to the basis on which the court actually reached its decision and not to extraneous expressions of opinion (obiter dicta), and a precedent may not be followed if the facts can be distinguished. Of course, even if not regarded as binding a decision or any aspect of the judge’s thinking may be accepted by another court as persuasive.

The Institutional Writers

The Institutional Writers were distinguished Scottish jurists working from the seventeenth to the nineteenth centuries. During this period they produced major works which set out the foundations of Scots law in many areas. The most famous was the seventeenth century scholar Stair (James Dalrymple, Viscount Stair).

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There was a significant continental European influence on the early Institutional Writers. The teaching of law in Scottish universities only became well-established during the eighteenth century. Before then, it was necessary to go outside Scotland to obtain a full legal education, and the preference was for countries on the continent rather than England. Stair in particular spent a substantial period working in Leiden in the Netherlands.

The Institutional Writers have less authority today than legislation or case law. However, where there is nothing contrary in legislation or case law, a statement in one of the Institutional Writings may be accepted to settle the law.

Other National Sources

There remains a residual role in Scotland for law to be created simply by custom which has been accepted over long periods of time. While Scotland does not generally have a concept of “equity” which is separate from that of “law”, Scots law does have the specific remedy of the nobile officium, whereby the Inner House of the Court of Session may provide to a petitioner, as a last resort, a remedy where justice requires it and none exists.

European Community Law

When the UK joined the European Community, the Treaty of Rome was incorporated into UK law by the European Communities Act 1972. Subsequent treaties have also been incorporated by legislation. European Community law takes precedence over domestic law under the 1972 Act.

International Sources

The power to enter into treaties on behalf of the UK rests with the UK Government, although where devolved Scottish interests are concerned there will be consultation with these as a matter of practice. Neither the UK nor the Scottish Parliament has any formal role in making treaties. Where a treaty requires ratification by the UK Government, the signed treaty must be laid before the UK Parliament for at least 21 sitting days before ratification takes place, so that debate may take place if desired. There is however no corresponding provision for treaties to be laid before the Scottish Parliament.
Treaties do not have the force of law in the UK unless they are enacted in legislation. The implementation of international obligations is a devolved matter, so a treaty in a devolved area would require Scottish legislation, or in an exceptional case the consent of the Scottish Parliament to a Bill at Westminster.

Further information

« Legal order - General information | United Kingdom - General information »

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Last update: 23-07-2007

 
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