Sources of Modern Scots Law Flashcards
What are the two MOST important sources of Scots Law?
Statute or Legislation & Common Law
What are the sources of Statute or Legislation?
- Acts (Laws) of the parliament (Westminster & Scottish Parliament)
- Delegated Legislation
What are the sources of Common Law?
- Judicial Precedent or case law
- Institutional writings
- Custom
What happened in 1603?
The Union of Crowns
In Roman Law what is a Deductive Approach?
This means the rules of the law are derived from institutional writings and applied to different cases.
In Anglo/American (Common Law)
what is an Inductive Approach?
This means the decision in a case leads to a principle in law.
What happened in 1707?
The union of parliaments
What type of system does Scots Law follow?
A mixed hybrid system. Influenced by Roman & Common Law
What 3 sources does legislation that is binding in Scotland come from?
- The UK Parliament
- The Scottish Parliament
- The Royal Prerogative
Who makes up the UK Parliament?
- The House of Commons
- The House of Lords
- The Monarch (Queen)
What is a Bill?
A proposed Law
What types of Bills are there in the UK parliament?
- Public Bill
- Private Bill
Who does a Public Bill apply to?
This applies to society as a whole
Who does a Private Bill apply to?
Applies to a small group of people or a particular organisation, body
Who must both types of Bills go through in the UK or become an Act (Law)?
- House of Commons
- House of Lords
- Royal Assent
What are stages of a Bill in Westminster?
1- First reading 2- Second Reading 3- Committee Stage 4- Report Stage 5- Third Reading
What happened in 1997?
The Referendum. Creation of Scottish Parliament.
What are the 3 Scotland Acts (Dates)?
- Scotland Act 1998, 2012, and 2016
When was the Scottish Parliament General Election?
6/5/1999
What does a Sovereign Parliament mean?
This means that the parliament is the supreme legal authority in the UK which can create and end any law. A principle of UK constitution.
What does devolved powers mean?
This means that the UK has given the Scottish parliament the right to legislate in devolved matters such as Education.
What are Reserved powers/matters?
These are areas where only the UK parliament has the right to legislate.
What is the Sewel Motion?
Scottish Parliament can ask Westminster to pass laws.
What happens with a Sewel Motion?
Westminster will introduce a Bill/ Act which covers the whole of the UK.
Types of Bills in Scotland (3 types)
- Government (Executive) Bill
- Committee Bill
- Member’s Bill
In Scotland what are the stages of a Public Bill?
Stage 1- Consideration of Bills general principles and decision to agree on this.
Stage 2- Consideration of details
Stage 3- Final consideration and decision whether to pass or reject.
& Sent to Royal Assent
In Scotland what are the stages of a Private Bill?
Preliminary Stage- Consideration of general principles and decision whether it should proceed as a Private Bill ( or should be a Public Bill)
Consideration Stage- considering the details
Final Stage- Final consideration and decision whether to reject or pass.
& Sent to Royal Assent
What does Statutory Instruments mean?
Delegated (Subordinate/Secondary Legislation)
The Parent Act delegates power to the government minister to make a new law without consulting with the parliament.
What is the Acts of Sederunt?
The Court of Session can make laws which regulate the conduct of business in all Scottish civil courts.
What is the Acts of Adjournal?
The High Court of Justiciary can introduce these Acts to organise the business and procedures of the High Court of Justiciary and the lower Scottish criminal courts.
What is By-laws?
A Parent Act gives law-making powers to an inferior body for example local councils.
What is a Parent Act?
Refers to delegated legislation and authority is laid down in a parent act of parliament known as an ‘enabling act’ which creates the structure of law and delegates powers to others to make a more detailed law in the area.
What is Judicial Precedent?
The practice of following previous judicial decisions.
What are the two parts of a previous judicial decision?
1- The ratio decidendi
2- Obiter dicta
What is The ratio decidendi?
The actual legal rule established by the court case.
What is the Obiter Dicta?
Statements or example provided by the judge.
What are the two Judicial Precedents?
- Binding precedents
- Persuasive precedents
Interpretation of statutory provisions. What is The literal rule?
The words used in the legislation are given their everyday, ordinary or literal meaning.
Interpretation of statutory provisions. What is The Golden Rule?
The judge applies the law literally, but in a way that avoids the creation of absurdities or injustices.
Interpretation of statutory provisions. What is The Mischief Rule?
The judge ignores the wording in the legislation and instead examines what mischief the statute was supposed to cure.
Interpretation of statutory provisions. What is The Purposive Rule?
The words of a statute are interpreted not only in their ordinary, literal and grammatical sense, but also with reference to the context and purpose of the legislation.
Interpretation of statutory provisions. What is The Contextual Rule?
A word should be constructed in its context (look at the statute as a whole to discover the meaning of the word in it).
When are Institutional writings to be used?
When there is no statute or legal precedent on a point of law.
What are Institutional writings?
These are the writings of influential Scottish lawyers between 1655 and 1826. These writings are referred to for guidance.
What is Custom?
These are traditional practices handed down over many generations. However the importance of this is diminished and very rarely used.
Judicial precedent is also known as
stare decisis
