Source Of Legislation In Scots Law Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Scotland is a part United Kingdom and does not have its own right to make a law without approval. As a part of United Kingdom Scotland has a right to make decisions under only certain legislations. There is also a higher power on top of UK which is European Union that needs to approve any decisions of law making made by UK. In this process all countries within EU are considered equally.

Laws are made to protect the individuals and his property. The two main areas of law are Criminal and Civil Law.

Criminal law is dealing with crime such as murder and all types of offences such as parking offences.

Civil law is part of private law and regulates the right and relationship between individuals such as divorce, contract etc.

There are statutory sources in Scots law which include European Union legislation, UK Parliament legislation and Scottish Parliament legislation.

European Union legislation has three sources of primary law, secondary law and supplementary law. The primary source of European law is the treaties, which are the basis of the European Union. The secondary sources comprise regulations, directives, decisions of the court of justice, recommendation and opinions. Laws proposed by the European Commission and each member state appoints one "Commissioner" Part of role of Commission is to propose new laws. They will set out exact terms of the new laws. Most proposed new laws then require to be passed by Council of European Union and European Parliament before become actual laws EU Legislation normally in the form of directives or regulations.

United Kingdom Parliament consists of two "houses" House of Commons and House of Lords. They can build laws on any topic unless conflicts with EU Law or is a matter booked to Scottish Parliament. Proposed laws published to both houses usually in form of "Bills" Bill details the new laws in great detail Bill then considered in detail by both houses. Both houses can accept or create changes or refuse before can become law has to be passed in both houses and receive "Royal Assent" Laws made are passed in the form of "Acts" and they can be civil or criminal.

Scottish Parliament legislation was brought into existence by Scotland Act 1998. "Single Tier" parliament can only make legislation which applies to Scotland and then only on matters delegated to it by UK Parliament such as health, education, planning etc. Scottish Parliament has the power to make laws on any topic not reserved to the UK Parliament. This means they cannot legislate in areas such as domestic policy, defence and national security, economic policy, employment and social security. There is some example of Acts passed by the Scottish Parliament: The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 – this was the first Act passed by the Scottish Parliament. Dog Fouling (Scotland) Act 2003 – local authority can issue a fixed penalty note to person in charge of a dog which defecates in a public place.

2.0 Judicial precedent used in Scots law

Judicial precedent is based on case law. United Kingdom Parliament has been active in making legislation and there is still only a limited amount of legislation from these bodies. If there is an absence of legislation the judges have to make decisions based on common law and the same was in the past. If there is no legislation governing matter being disputed in a court has to decide case based on common law. When does the court states or develops the common law in that area judges decisions "reported" Therefore available to other judges and lawyers and can be referred to by them in other cases.

The civil and criminal court systems are hierarchical but in certain circumstances decision made by one court on point of common law binding on another court when deciding case based on the same point of common law and it is called a judicial precedent.

If there is no legislation on subject matter Legislation can overrule common law and common law cannot take precedence legislation. So if since precedent case decided has been legislation in the law of that area case has been overruled it will be no longer a precedent.

Highest court is Supreme Court decisions binding on all inferior courts next is Inner House of Court of Session binds all inferior courts. All other courts are on same level and their decisions not binding on any other court beware the Sheriff Principal. Precedent case and current case must be on same point of law decision from a superior court on point of the law of divorce Not binding on subsequent case in lower court on law of contract but if on exactly the same points of law both cases "on all fours" and may be binding .

The example of judicial precedent is The Supreme Court. This is the successor to the House of Lords and has the power to hear appeals from the Inner House of the Court of Session in civil cases. The Supreme Court is located in London.

3.0 Institutional writing and role in Scots law

Industrial writing lived at time 17th to early 19th century. Up until the end of the 19th century Parliament produced little by way of statutory law and so the judges who were deciding cases had to decide cases based on the common law and as new situations came before them had to develop the existing common law.

The examples of Institutional Writers are Erskine and Bell. "Erskine was a first writer who makes a clear distinction between intentional and unintentional wrongs. He also regards the nominate wrongs as the civil aspects of crime and the innominate wrongs as acts which are less culpable but which still require a legal response because of the element of culpability in the neglect."

The major importance of the Institutional Writers was that they contributed to the orderly development of Scots law.

4.0 Custom and role in Scots law

Custom law occurs where people or courts come to accept a log established practise as having the force of law. It is probably does not formally exist until a court declares it exist but cannot be contrary to statutory law or decided case law.

This is also a practise which was long and consistently recognised has obtain the force of law. Custom is now rarely a source of new law.