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Scots law (Scottish Gaelic:Lagh na h-Alba) is thelegal system ofScotland. It is a hybrid or mixed legal system containingcivil law andcommon law elements, that traces its roots to a number of different historical sources.[1][2][3] Together withEnglish law andNorthern Irish law, it is one of the threelegal systems of the United Kingdom.[4] Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland and Scots law is passed by theScottish Parliament on all areas of devolved responsibility, and theUnited Kingdom Parliament on reserved matters. Some legislation passed by the pre-1707Parliament of Scotland is still also valid.
Early Scots law before the 12th century consisted of the different legal traditions of the various cultural groups who inhabited the country at the time, theGaels in most of the country, with theBritons andAnglo-Saxons in some districts south of the Forth and with theNorse in the islands and north of theRiver Oykel. The introduction offeudalism from the 12th century and the expansion of theKingdom of Scotland established the modern roots of Scots law, which was gradually influenced by other, especiallyAnglo-Norman andcontinental legal traditions. Although there was some indirectRoman law influence on Scots law, the direct influence of Roman law was slight up until around the 15th 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.
Since theUnion with England Act 1707, Scotland has shared alegislature withEngland and Wales. Scotland retained a fundamentally different legal system from that south ofthe border, but the Union exerted English influence upon Scots law. Since the UK joined the European Union, Scots law has also been affected byEuropean law under theTreaties of the European Union, the requirements of theEuropean Convention on Human Rights (entered into by members of theCouncil of Europe) and the creation of the devolved Scottish Parliament which may pass legislation within all areas notreserved to Westminster, as detailed by theScotland Act 1998.[5][6]
TheUK Withdrawal from the European Union (Continuity) (Scotland) Act 2020 was passed by the Scottish Parliament in December 2020.[7] It receivedroyal assent on 29 January 2021 and came into operation on the same day. It provides powers for the Scottish Ministers to keep devolved Scots law in alignment with futureEU Law.
The United Kingdom, judicially, consists of threejurisdictions: England and Wales, Scotland, and Northern Ireland.[4] There are important differences among Scots law,English law andNorthern Irish law in areas such asproperty law,criminal law,trust law,[8]inheritance law,evidence law andfamily law while there are greater similarities in areas of UK-wide interest such ascommercial law, consumer rights,[9] taxation, employment law and health and safety regulations.[10]
Examples of differences among the jurisdictions include theage of legal capacity (16 years old in Scotland but 18 years old in England and Wales),[11][12] and the fact thatequity was never a distinct branch of Scots law.[13] Some examples in criminal law include:
In Scotland there arejustice of the peace courts andsheriff courts, rather thanmagistrates' courts orCrown Court as in England and Wales. The High Court of Justiciary is Scotland’s supreme criminal court and deals with the most serious crime. TheCourt of Session is the supreme civil court.
The majority of crime is prosecuted by TheCrown Office and Procurator Fiscal Service, which provides the independent public prosecution service for Scotland similar to theCrown Prosecution Service in England and Wales and thePublic Prosecution Service in Northern Ireland.
The Crown Office and Procurator Fiscal Service is also the country’s death investigation service,[17] and is responsible for investigating all suspicious, sudden or unexplained deaths.
Unlike England and Wales, Scotland has no coronial system to investigate deaths. Instead aFatal Accident Inquiry (FAI), presided over by a judge, may be established to determine the cause of a death and any steps to prevent deaths in similar circumstances.
Except in circumstances where an FAI is mandatory, such as deaths in prison or in police custody, the Crown Office will determine whether an FAI would be in the public interest.
Under Scots law and in theScottish courts, the person or body making a claim in a civil action is called a "pursuer" and the opposing party is called a "defender". An article produced and lodged asevidence in court is called a "production",[18] whereas in England and Wales it would be referred to as an "exhibit".
Scots law can be traced to its early beginnings as a number of different custom systems among Scotland's early cultures to its modern role as one of the three legal jurisdictions of the United Kingdom. The various historic sources of Scots law, includingcustom,feudal law,canon law,civilianius commune and English law have created ahybrid or mixed legal system.
The nature of Scots law before the 12th century is largely speculative, but is likely to have been a mixture of different legal traditions representing the different cultures inhabiting the land at the time, includingGaelic,Welsh,Norse andAnglo-Saxon customs.[19] There is evidence to suggest that as late as the 17th century marriage laws in theHighlands and Islands still reflected Gaelic custom, contrary toCatholic religious principles.[20] The formation of the Kingdom of Scotland and its subjugation of the surrounding cultures, completed by theBattle of Carham, established what are approximately the boundaries of contemporary mainland Scotland.[21] TheOuter Hebrides were added after theBattle of Largs in 1263, and theNorthern Isles were acquired in 1469, completing what is today the legal jurisdiction of Scotland.[22]
From the 12th centuryfeudalism was gradually introduced to Scotland and establishedfeudal land tenure over many parts of the south and east, which eventually spread northward.[23][24] As feudalism began to develop in Scotland early court systems began to develop, including early forms ofSheriff Courts. UnderRobert the Bruce the importance of theParliament of Scotland grew as he called parliaments more frequently, and its composition shifted to include more representation from theburghs and lesser landowners.[25] In 1399 a General Council established that the King should hold a parliament at least once a year for the next three years so "that his subjects are served by the law".[25][26] In 1318 a parliament atScone enacted a code of law that drew upon older practices, but it was also dominated by current events and focused on military matters and the conduct ofthe war of Scottish Independence.[27]
From the 14th century we have surviving examples of early Scottish legal literature, such as theRegiam Majestatem (on procedure at the royal courts) and theQuoniam Attachiamenta (on procedure at the baron courts).[28] Both of these important texts, as they were copied, had provisions fromRoman law and theius commune inserted or developed, demonstrating the influence which both these sources had on Scots law.[29] From the reign of KingJames I to KingJames V the beginnings of a legal profession began to develop and the administration of criminal and civil justice was centralised.[30] The Parliament of Scotland was normally called on an annual basis during this period and its membership was further defined.[31] The evolution of the modernCourt of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.[32]
The 1688Glorious Revolution and theClaim of Right in 1689establishedParliamentary Sovereignty in Scotland, and theActs of Union 1707 merged theKingdom of Scotland and theKingdom of England to form the newKingdom of Great Britain. Article 19 of theAct confirmed the continuing authority of theCollege of Justice,Court of Session andCourt of Justiciary in Scotland.[33] Article 3, however, merged theEstates of Scotland with theParliament of England to form theParliament of Great Britain, with its seat in thePalace of Westminster,London. Under the terms of the Act of Union, Scotland retained its own systems of law, education and Church (Church of Scotland,Presbyterian polity), separately from the rest of the country.
TheParliament of Great Britain otherwise was not restricted 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. TheScottish Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to London and the introduction of appeal in civil but not criminal cases to theHouse of Lords (now, by appeal to the newSupreme Court of the United Kingdom) brought further English influence. Acts of the Parliament began to create unified legal statutes applying in both England and Scotland, particularly when conformity was seen as necessary for pragmatic reasons (such as theSale of Goods Act 1893). Appeal decisions by English judges raised concerns about this appeal to a foreign system, and in the late 19th century Acts allowed for the appointment ofScottish 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. Today theSupreme 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.[34]
Scots law has continued to change and develop in the 20th century, with the most significant change coming underdevolution and the reformation of theScottish Parliament.
An early Scottish legal compilation,Regiam Majestatem, was based heavily onGlanvill'sEnglish law treatise, although it also contains elements ofcivil law, feudal law, canon law, customary law and native Scotsstatutes. Although there was some indirect Roman-law influence on Scots law, via medievalius commune andcanon law used in thechurch courts, the direct influence of Roman law was slight up until around the mid-15th century.[35] After this time, civilianius commune was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and civil law was in this way partially receivedin subsidium into Scots law.
Since theActs of Union 1707, Scotland has shared alegislature with the rest of theUnited Kingdom. Scotland retained a fundamentally different legal system from that ofEngland and Wales, but the Union broughtEnglish influence on Scots law. In recent years, Scots law has also been affected byEuropean law under theTreaties of the European Union, the requirements of theEuropean Convention on Human Rights (entered into by members of theCouncil of Europe) and the establishment of theScottish Parliament which may pass legislation within itsareas of legislative competence as detailed by theScotland Act 1998.[5][6]
TheParliament of the United Kingdom has the power to passstatutes on any issue for Scotland, although under theSewel convention it will not do so indevolved matters without theScottish Parliament's consent.[36][37] TheHuman Rights Act 1998, theScotland Act 1998 and theEuropean Communities Act 1972 have special status in the law of Scotland.[38] Modern statutes will specify that they apply toScotland and may also include special wording to take into consideration unique elements of the legal system. Statutes must receiveroyal assent from theKing before becominglaw, however this is now only a formal procedure and is automatic.[39] Legislation of theParliament of the United Kingdom is not subject to revocation by the courts as the Parliament is said to have supreme legal authority; however, application of legislation is subject to judicial review and also in practice, the Parliament will tend not to create legislation which contradicts theHuman Rights Act 1998 orEuropean law, although it is technically free to do so.[40] 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 theUnited Kingdom and theEuropean Union.[41][42] Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation in the form ofstatutory instruments. This delegated legislation has legal effect in Scotland so far as the specific provisions of the statutory instrument are duly authorised by the powers of the Act, a question which can be subjected to judicial review.
TheScottish Parliament is adevolvedunicamerallegislature that has the power to pass statutes only affecting Scotland on matterswithin its legislative competence.[6] Legislation passed by the Scottish Parliament must also comply with theHuman Rights Act 1998 andEuropean law, otherwise the Court of Session or High Court of Justiciary have the authority to strike down the legislation asultra vires.[43][44] There have been a number of high-profile examples of challenges to Scottish Parliament legislation on these grounds, including against theProtection of Wild Mammals (Scotland) Act 2002 where an interest group unsuccessfully claimed the ban on fox hunting violated their human rights.[45] Legislation passed by the Scottish Parliament also requiresroyal assent which, like with theParliament of the United Kingdom, is automatically granted.[46]
Legislation passed by the pre-1707Parliament of Scotland still has legal effect in Scotland, though the number of statutes that have not been repealed is limited. Examples include theRoyal Mines Act 1424, which makes gold and silver mines the property of theKing, and theLeases Act 1449, which is still relied on today inproperty law cases.[47]
Legislation which forms part of the law of Scotland should not be confused with acivil 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 incriminal law where a large body oflegal precedent has been developed, so that many crimes, such as murder, are notcodified.[48] Sources of common law in Scotland are the decisions of theScottish courts and certain rulings of theSupreme Court of the United Kingdom (including its predecessor theHouse of Lords).[49] The degree to which decisions of the Supreme Court are binding on Scottish courts incivil 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 consideredbinding precedent.[50] Incriminal cases the highest appellate court is theCourt of Justiciary and so the common law related to criminal law in Scotland has been largely developed only in Scotland.[49] Rulings of theEuropean Court of Human Rights and the Court of Justice of the European Union also contribute to the common law in the interpretation of theEuropean Convention on Human Rights andEuropean law respectively.
The common law of Scotland should not be confused with thecommon law of England, which has different historical roots.[51] 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 withfeudal concepts by theScottish Kings to form a distinct common law.[51][52][53]
The influence that English-trained judges have had on the common law of Scotland through rulings of theSupreme Court of the United Kingdom (and formerly theHouse of Lords) has been at times considerable, especially in areas of law where conformity was required across theUnited Kingdom for pragmatic reasons. This has resulted in rulings with strained interpretations of the common law of Scotland, such asSmith v Bank of Scotland.[54]
A number of works by academic authors, calledinstitutional 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.[55] The generally accepted list[56] of institutional works are:
Some commentators[56] 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 ofstare decisis.[55] The degree to which these works are authoritative is not exact. The view ofUniversity of Edinburgh ProfessorSir 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".[58]
John Erskine of Carnock, an institutional writer, describedlegal 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."[59] Legal custom in Scotland today largely plays a historical role, as it has been gradually eroded by statute and the development of the institutional writers' authority in the 19th century.[60] Some examples do persist in Scotland, such as the influence ofUdal law inOrkney andShetland.[61] However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.[62]
TheScottish Government, led by theFirst Minister, is responsible for formulating policy and implementing laws passed by theScottish Parliament.[63] The Scottish Parliament nominates one of its Members to be appointed as First Minister by theKing.[64] TheFirst Minister is assisted by various Cabinet Secretaries with individualportfolios and remits, who are appointed by theFirst Minister with the approval of Parliament. Ministers are similarly appointed to assist Cabinet Secretaries in their work. The Scottish Law Officers, (theLord Advocate[65] andSolicitor General)[64] can be appointed from outside the Parliament's membership, but are subject to its approval. The First Minister, the Cabinet Secretaries, Ministers and the Scottish Law Officers are the Members of the Scottish Government. They are collectively known as the "Scottish Ministers".
TheScottish Government has executive responsibility for the Scottish legal system, with functions exercised by theCabinet Secretary for Justice and Home Affairs. The Justice Secretary has political responsibility forpolicing, law enforcement, thecourts of Scotland, theScottish Prison Service,fire services,civil emergencies andcivil justice.
Many areas of Scots law arelegislated for by theScottish Parliament, in mattersdevolved from theParliament of the United Kingdom. Areas of Scots law over which theScottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others.[6] However, certain powers arereserved to Westminster includingdefence,international relations,fiscal and economic policy,drugs law, andbroadcasting. 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 theSewel convention it will not legislate on devolved matters without the agreement of the Scottish Parliament.[37]
All Scottish courts, except for theCourt of the Lord Lyon, are administered by theScottish Courts and Tribunals Service. The Courts and Tribunals service is anon-ministerial government department with a corporate board chaired by theLord President of the Court of Session (the head of thejudiciary of Scotland.)[66]: Section 60
Less serious criminal offences which can be dealt with undersummary procedure are handled by localJustice 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.[67]
Sheriff Courts act as district criminal courts, organised bysheriffdom, and deal with cases under bothsummary andsolemn procedure. Cases can be heard either before a Summary Sheriff, a Sheriff, or a Sheriff and a jury. The maximum penalty which the Sheriff Court can impose, where heard just by a Sheriff or Summary 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.[68]
Appeals againstsummary convictions andsummary sentences are heard by theSheriff Appeal Court, and decisions of the Sheriff Appeal Court can only be appealed with leave to theHigh Court of Justiciary and then only onquestions of law.[69][70][71]: Sections 118–119
More serious crimes, and appeals from solemn proceedings in the Sheriff Courts, are heard by theHigh Court of Justiciary. There is no appeal available in criminal cases to theSupreme Court of the United Kingdom,[68] with respect to points of criminal law. Cases where the accused alleges a breach of theEuropean Convention on Human Rights orEuropean law can also be referred or appealed to the UK Supreme Court for a ruling on the relevant alleged breach. In these cases the UK Supreme Court is the successor to theHouse of Lords as the highest civil court having taken over the judicial functions of the House of Lords and thePrivy Council from 2009.
Sheriff Courts also act as district civil courts withexclusive jurisdiction over all cases worth not more than£100,000, unless they are particularly complicated or of significant importance.[72][73][74] Personal injury actions may also be heard at the specialist all-ScotlandSheriff Personal Injury Court, which has the power to hear cases before ajury.[75] Decisions of a Sheriff Court are appealed to theSheriff Appeal Court. Further appeals are possible to theInner House of the Court of Session, but only with the permission of either the Sheriff Appeal Court, or the Court of Session. Such appeals are granted if there is an important point of principle, or other compelling reason. Appeals may finally be taken to theSupreme Court of the United Kingdom, but only with the leave of either the Inner House or the Supreme Court itself, and it relates to a general point ofpublic interest in the law.[71]: Sections 109–111, 113, 117
Complicated or high-value cases can be heard atfirst instance by theOuter House of the Court of Session, with the Court of Session havingconcurrent jurisdiction for all cases with a monetary value of more than£100,000.[73] Decisions of the Outer House are appealed to the Inner House of the Court of Session, and (where allowed by the Inner House, or in matters relative to Devolution) then to the Supreme Court of the United Kingdom.
Scottish courts may makea reference for a preliminary ruling to the Court of Justice of the European Union in cases involvingEuropean law.[76]
There are also a number of specialist courts and tribunals that have been created to hear specific types of disputes. These includeChildren's Hearings, theLands Tribunal for Scotland, theScottish Land Court and theCourt of the Lord Lyon. TheEmployment Appeal Tribunal is also an example of a cross-jurisdictional tribunal.
Scotland has several classes ofjudge who sit in the various courts of Scotland, and led by theLord President of the Court of Session who is head of the Scottish judiciary by virtue of Section 2 of theJudiciary and Courts (Scotland) Act 2008.[66]: Section 2 The second most senior judge is theLord Justice Clerk,[66]: Section 5 and together with theSenators they constitute theCollege of Justice. The Senators are referred to asLords of Council and Session when sitting in civil cases, andLords Commissioners of Justiciary when sitting in criminal cases.[77]
The sheriff courts are presided over by theSheriffs Principal,Sheriffs, and Summary Sheriffs. They will preside over both civil and criminal cases.[78][79][80]
The most junior judges are thejustices of the peace who preside over minor criminal matters in theJustice of the Peace Courts.[81]
The Scottishlegal profession has two main branches,advocates andsolicitors.[82]
Advocates, the equivalent of the Englishbarristers, belong to theFaculty of Advocates which distinguishes between junior counsel and senior counsel, the latter being designatedKing's or Queen's Counsel. Advocates specialise in presenting cases beforecourts andtribunals, with near-exclusive rights of audience, 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.[citation needed]
Solicitors are members of theLaw 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 known assolicitor advocates.Notaries public, unliketheir continental equivalent, are not members of a separate profession; they must be solicitors, and most solicitors are also notaries.[citation needed]
The Scottish Law Agents Society (SLAS) is a voluntary, national body representing solicitors in Scotland, operating independently under a Royal Charter. SLAS focuses solely on representation, avoiding conflicts of interest tied to regulation. The SLAS addresses issues affecting solicitors, advocating for the profession's independence, and responding to reforms like the Regulation of Legal Services (Scotland) Bill 2023.[citation needed] At present, the President of The Scottish Law Agents' Society is Mr Darren Murdoch,[83] a solicitor based at Waddell and Mackinosh law firm in Troon, Ayrshire.[84]
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