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Business Law > Sources of Modern Scots Law > Flashcards

Sources of Modern Scots Law Flashcards

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1
Q

What are the two MOST important sources of Scots Law?

A

Statute or Legislation & Common Law

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2
Q

What are the sources of Statute or Legislation?

A
  • Acts (Laws) of the parliament (Westminster & Scottish Parliament)
  • Delegated Legislation
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3
Q

What are the sources of Common Law?

A
  • Judicial Precedent or case law
  • Institutional writings
  • Custom
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4
Q

What happened in 1603?

A

The Union of Crowns

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5
Q

In Roman Law what is a Deductive Approach?

A

This means the rules of the law are derived from institutional writings and applied to different cases.

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6
Q

In Anglo/American (Common Law)

what is an Inductive Approach?

A

This means the decision in a case leads to a principle in law.

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7
Q

What happened in 1707?

A

The union of parliaments

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8
Q

What type of system does Scots Law follow?

A

A mixed hybrid system. Influenced by Roman & Common Law

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9
Q

What 3 sources does legislation that is binding in Scotland come from?

A
  • The UK Parliament
  • The Scottish Parliament
  • The Royal Prerogative
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10
Q

Who makes up the UK Parliament?

A
  • The House of Commons
  • The House of Lords
  • The Monarch (Queen)
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11
Q

What is a Bill?

A

A proposed Law

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12
Q

What types of Bills are there in the UK parliament?

A
  • Public Bill

- Private Bill

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13
Q

Who does a Public Bill apply to?

A

This applies to society as a whole

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14
Q

Who does a Private Bill apply to?

A

Applies to a small group of people or a particular organisation, body

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15
Q

Who must both types of Bills go through in the UK or become an Act (Law)?

A
  • House of Commons
  • House of Lords
  • Royal Assent
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16
Q

What are stages of a Bill in Westminster?

A 
1- First reading 
2- Second Reading 
3- Committee Stage
4- Report Stage
5- Third Reading
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17
Q

What happened in 1997?

A

The Referendum. Creation of Scottish Parliament.

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18
Q

What are the 3 Scotland Acts (Dates)?

A
  • Scotland Act 1998, 2012, and 2016
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19
Q

When was the Scottish Parliament General Election?

A

6/5/1999

20
Q

What does a Sovereign Parliament mean?

A

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.

21
Q

What does devolved powers mean?

A

This means that the UK has given the Scottish parliament the right to legislate in devolved matters such as Education.

22
Q

What are Reserved powers/matters?

A

These are areas where only the UK parliament has the right to legislate.

23
Q

What is the Sewel Motion?

A

Scottish Parliament can ask Westminster to pass laws.

24
Q

What happens with a Sewel Motion?

A

Westminster will introduce a Bill/ Act which covers the whole of the UK.

25
Q

Types of Bills in Scotland (3 types)

A
  • Government (Executive) Bill
  • Committee Bill
  • Member’s Bill
26
Q

In Scotland what are the stages of a Public Bill?

A

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

27
Q

In Scotland what are the stages of a Private Bill?

A

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

28
Q

What does Statutory Instruments mean?
Delegated (Subordinate/Secondary Legislation)

A

The Parent Act delegates power to the government minister to make a new law without consulting with the parliament.

29
Q

What is the Acts of Sederunt?

A

The Court of Session can make laws which regulate the conduct of business in all Scottish civil courts.

30
Q

What is the Acts of Adjournal?

A

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.

31
Q

What is By-laws?

A

A Parent Act gives law-making powers to an inferior body for example local councils.

32
Q

What is a Parent Act?

A

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.

33
Q

What is Judicial Precedent?

A

The practice of following previous judicial decisions.

34
Q

What are the two parts of a previous judicial decision?

A

1- The ratio decidendi

2- Obiter dicta

35
Q

What is The ratio decidendi?

A

The actual legal rule established by the court case.

36
Q

What is the Obiter Dicta?

A

Statements or example provided by the judge.

37
Q

What are the two Judicial Precedents?

A
  • Binding precedents

- Persuasive precedents

38
Q

Interpretation of statutory provisions. What is The literal rule?

A

The words used in the legislation are given their everyday, ordinary or literal meaning.

39
Q

Interpretation of statutory provisions. What is The Golden Rule?

A

The judge applies the law literally, but in a way that avoids the creation of absurdities or injustices.

40
Q

Interpretation of statutory provisions. What is The Mischief Rule?

A

The judge ignores the wording in the legislation and instead examines what mischief the statute was supposed to cure.

41
Q

Interpretation of statutory provisions. What is The Purposive Rule?

A

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.

42
Q

Interpretation of statutory provisions. What is The Contextual Rule?

A

A word should be constructed in its context (look at the statute as a whole to discover the meaning of the word in it).

43
Q

When are Institutional writings to be used?

A

When there is no statute or legal precedent on a point of law.

44
Q

What are Institutional writings?

A

These are the writings of influential Scottish lawyers between 1655 and 1826. These writings are referred to for guidance.

45
Q

What is Custom?

A

These are traditional practices handed down over many generations. However the importance of this is diminished and very rarely used.

46
Q

Judicial precedent is also known as

A

stare decisis

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