Sources of law/parliamentary sovereignty

Question 1

Sources of Scots law

Answer 1

• The Scottish Parliament
• The UK parliament
• European court of Justice
• European court of human rights
• Courts and case law
• Human rights act and human rights convention

Question 2

Court of Session

Answer 2

• The Court of Session is the highest civil court in Scotland. It deals with all forms of civil cases. Including ‘delict’s – known as ‘torts’ in other jurisdictions….. a delict is a civil wrong. the court of sessions also deals with family law, commercial law, intellectual property and judicial review
• Judges look at all kind of cases, but they will have specialisations, and there will be special arrangements for commercial cases.
• The court of session is divided into the Outer House and the Inner House.
• The Outer house hears cases at first instance (meaning they have not previously been to court) whereas the Inner house generally is the appeal court and deals with civil appeals from the Outer House and Sherrif courts.
• Appeals from the Inner House may go to the Supreme Court of the UK

Question 3

Parliamentary Sovereignty

Answer 3

• Parliamentary Sovereignty is a principle of the UK constitution
• It makes parliament the supreme legal authority in the UK, which can end or create any law
• Generally, no courts can change its legislation and no Parliament can pass laws that no future Parliament cannot change
• Parliamentary sovereignty is the most important part of the UK constitution

Question 4

UK constitution

Answer 4

• The UK doesn’t have a written constitution like the US does
• It’s made up of five categories:
• Statute – individual laws or ‘acts of parliament’
• Common law – case law made by judges or precedent
• Conventions – traditions, customs, long-standing practices
• Treatises – historical works
• Treaties – EU and other international agreements
• Early Bills and charters have some influence like the Magna Carta and the Bill of Rights

Question 5

Scottish Parliament

Answer 5

• The Scottish Parliament can overthrow UK legislations for those devolved issues
• The Scottish Parliament can pass laws for those devolved issues
• It can pass motions/vote against laws created by Westminster, but in reality, these have very little impact on the laws created by Westminster.

Question 6

Can the UK Supreme Court overrule the UK parliament?

Answer 6

• No. Unlike some Supreme Courts in other parts of the world, the UK Supreme Court does not have the power to ‘strike down’ legislation passed by the UK Parliament
• It is the court’s role to interpret and develop the law where necessary, not create public policy
• However that changes when in September 2019 the SC rules that the PM acted illegally by suspending the parliament before Brexit
• Proroguing is apower of the PM’S
• HE/SHE can ask the Queen to do this
• MPs do not need to vote for this

Question 7

European Court of Human Rights

Answer 7

• The European Court of Human Rights (ECHR) is the court of law of the Council of Europe. It’s based in Strasbourg, France,
• The Court ensures member states of the Council or Europe respect the rights and guarantees set out in the ECHR.
• The court is made up of 47 judges, one from each member state. It examines complaints alleging violations of human rights. These complaints can be made by individual or member states
• When the court finds that a Member State has violated one or more of the convention’s rights and guarantees, it explains why in a written judgement
• Judgements are binding, the countries concerned must comply with them

Question 8

European Commission

Answer 8

Commission: made up of 28 commissioners (one from each Member State) appointed by member countries (approved by the European Parliament) for a five-year term, Based in Brussels.

• Each commissioner has a specific portfolio (e.g. the president, foreign affairs, financial services etc)
• Administers EU rules and policies. Initiates policies, laws, etc. Watchdog of the EU treaties. (may fine those who break the rules or take them to the European court of justice)
• Negotiates on behalf of and represents the EU in discussion with non-EU countries

Question 9

European Court of Justice

Answer 9

• It decides whether institutions of the EU are behaving legally and resolves disputes between them.
• It ensures the member states are complying with their legal obligations as set out in the European treaties.
• It also allows member states to challenge EU legislation
• It interprets EU law at the request of national courts
• Taken all together, this means the European court of justice interprets and enforces the rules of the single market, and pretty much everything else that the EU does

Question 10

Precedent

Answer 10

• Precedent forms the basis of common law. This is one of the sources of law in Scotland
• The judiciary may, on occasion, determine the meaning of a term in a piece of legislation and they also create law through precedent
• There are areas of law, such as delict, where little legislation exists
• When legislation does not exist, courts have to make a decision on the facts before them and look at previous decisions to determine the case
• In this way they have created an area of law called ‘common law’

Question 11

First precedent

Answer 11

• It is dynamic, the rule in a previous case can be applied to subsequent similar cases.
• This allows the common law to evolve incrementally in order to cover newer factual situations and changing social circumstances and norms that have some resemblance to, or roots in, the first case

Question 12

Second precedent

Answer 12

• Once a legal principle is decided in one case it should be followed in similar future cases
• The doctrine of the binding precedent refers to the fact that, in the hierarchal structure of courts in Scotland, the decision of the higher court will be binding on a lower court
• In general terms this means that when judges try cases they will check to see if a similar case has come before a judge before
• If a precedent from a similar case exists and it was set by a court of equal of higher power, then the judge in the present case should follow the legal principle established in the earlier case
• Where precedent is from a lower court in the hierarchy then the present judge in the new case may not follow it, but will certainly consider it
• there are three essential elements of this system of precedent:
• accurate law reporting
• binding precedent
• the hierarchy of courts