Main Sources Of Scots Business Law Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Malwina Szymanska HNC Administration & IT "D"

Submission date 04/03/2013

Introduction

Scots law has two main areas of law: Civic Law and Criminal Law. These laws are made to protect people and make them feel safe.

Scottish criminal law deals with offences against people and offences against property, for example, murder, rape, parking offences, non-payment of TV licence, and theft. Criminal law also covers public order offences, which include mobbing, and so on. [1] 

Scottish civic law is focused on non–criminal disputes, such as those related to business, personal relationships, divorce, contracts, debts, etc. [2] 

Identify and describe the sources of legislation that are binding in Scots law and quote at least one example.

Legislation can be defined as the written law, and the three sources of legislation that are binding in Scottish law are:

Sources of Law

European legislation

United Kingdom legislation

Scottish legislation

European legislation is proposed by the institutions of the European Union.

The United Kingdom has been a member of the EU since January 1st 1973. [3] This meant that on joining the Union, the UK and its public became subject to the Treaties and different legislation which were put in place when the EU was formed. EU legislation is made by laws planned by the European Commission. Each member state is represented by its own commissioner, and one of this representative’s roles is to suggest changes or to propose new laws. However, before suggested new laws become actual laws, they must be passed through the Council of the European Union and European Parliament and then become accepted. EU legislation is usually delivered within the structure of commands or rules. [4] 

Example of an Act

"European Union Act 2011" [5] "An Act to make provision about treaties relating to the European Union and decisions made under them, including provision implementing the Protocol signed at Brussels on 23 June 2010 amending the Protocol (No. 36) on transitional provisions annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community; and to make provision about the means by which directly applicable or directly effective European Union law has effect in the United Kingdom."

[19th July 2011]

United Kingdom legislation proposed by the British Parliament (Westminster)

The British Parliament consists of two "houses": the House of Commons and the House of Lords. The members of the House of Commons are elected by the population, whereas the members of the House of Lords are appointed as peers by the government, and a limited number of its members are hereditary peers, who are also be able to create laws on any topic. According to UK legislation, before an Act is passed and can become a law, both Houses must debate the law, and they can decide to change, refuse or accept any law. The Act must be passed in both Houses and be given the Royal Assent. [6] 

Examples of Act

"Statute Law( Repeals) Act 2013 [7] "An Act to promote the reform of the statute law by the repeal, in accordance with recommendations of the Law Commission and the Scottish Law Commission, of certain enactments which (except in so far as their effect is preserved) are no longer of practical utility."

Scottish legislation proposed by the Scottish Parliament (Holyrood)

In the1990s, after the results of the referendum and elections, Scotland built its Parliament in Edinburgh. The Scotland Act 1998 provides the Scottish Parliament with a mandate to make laws on any subject which are not the exclusive domain of the UK Parliament but which are mainly restricted to Scotland, and also on matters delegated to it by the UK Parliament, for example Scottish education, planning, health, and so on. It cannot legislate on foreign policy, defence, economic policy, employment or laws which conflict with EU legislation. Scottish Parliament Legislation creates laws by providing details of each suggested law, which is then considered by the Members of the Scottish Parliament (MSPs) before they accept, amend, or reject it. When a law is passed by a majority of MSPs, it is then conferred to be given Royal Assent, and becomes an Act. [8] 

Examples of Acts

"Licensing ( Scotland ) Act 2005 [9] " Act of Prohibition of unlicensed sales of alcohol"

"Tourist Boards (Scotland) Act 2006 [10] "Act of the Scottish Parliament to rename the Scottish Tourist Board, to increase the maximum number of members of that body and to abolish area tourist boards"

Explain judicial precedent [11] and how it is used in Scots law, quoting at least one example.

"Judicial precedent is based on case law," [12] and it becomes relevant when judges consider the issues being contested in their court according to the outcomes of previous similar cases, based on points of common law. There still exist some sections of the law which do not provide much in the way of legislation to assist judges in particular cases, for example in cases concerning contract or civil law. Therefore, in such cases, judges must make decisions based on existing common law, which consequently leads them to stating the common law and extending it, which will in turn affect future cases which involve similar aspects of common law.

Example of Judicial Precedent

The notorious criminal case of Jamieson v HM Advocate in 1994 provides an example of a decision made in a Scottish court of law which led to the setting of a judicial precedent. In this case, an appellant was appealing against an earlier decision to convict him for rape. "The appellant's grounds of appeal in relation to this charge allege various misdirections by the trial judge. But counsel for the appellant addressed his argument to one point only, which was that the trial judge failed to give adequate and proper directions with regard to the appellant's defence that he believed that the complainer consented to intercourse. It is said that he failed to direct the jury that a person could not be convicted of rape if he believed honestly, albeit mistakenly, that the woman was a consenting party, even if he had no reasonable grounds for that belief, and that such a direction would have been appropriate in the present case in view of the nature of the evidence."

The outcome of this case, which was to quash the appellant’s conviction for rape, partly resulted from precedent involving earlier, similar criminal cases, such as the case of HM Advocate v Stevenson and Others, 1985, in which "the trial judge directed the jury … that it was a defence if the accused believed that the complainer was consenting to intercourse "and there were reasonable grounds for him believing that fact". The Crown accepted that this was a misdirection in the particular circumstances of that case, and the conviction of rape was quashed by the appeal court." [13] 

Explain Institutional writing and its role in Scots law.

Institutional writers Stair, Craig, Erskine, Hume, Bell and Bankton were a closed group of legal experts who wrote during the 17th to early 19th century. They published works on their area of expertise, namely institutional law, and their works became authoritative statements of the law in this particular legal area, due to their experience and skills in this area. Industrial Writing is a formal recording of court decisions and opinions. Institutional writing is still used in Scots law to this day, and is seen as a prime authority on Scots law; however, although the writings may still apply in certain cases, they are only relevant where there is no opposing legislation or case law or in cases in which social values have not changed since the writings were produced. [14] 

Explain custom and its role in Scots law.

A custom is a legal practice which has been extended and documented so often in the past that it has become an accepted part of common law. Along with judicial precedent, institutional writings and equity, it constitutes what is recognised as common law, although it is hardly ever used as a basis for any new laws. For example, the legal rights of widows and children when a husband dies without leaving a will have formed a custom. [15]