Sources of Scots Law and intro to Agency Flashcards
when was the Scottish parliament created?
11/9/97 THE REFERENDUM
The Scotland Act 1998 ‘ There shall be a Scottish Parliament
What does the act deal with?
Election of the parliament
Its powers
Appointment and powers of a first minister and Scottish executive
The relationship between Scottish and UK parliament
Is the Scottish parliament a completely independent body?
no it is not!
It is not a sovereign Parliament an it has territorial limits- legislation for Scotland
it can only legislate
Delegated by the UK parliament
Does Westminster have overriding power over the Scottish parliament?
yes!
Westminster given powers and responsibilities to the Scottish parliament;
However certain powers are retained by the UK parliament (reserved matters)
Westminster is the supreme law making authority
therefore… the UK parliament has overriding powers.
True or False: The Scottish parliament can pass laws within agriculture, forestry, and fisheries. (devolved powers)
TRUE
The Scottish parliament can pass laws in the following areas:
Housing Justice Local Government and local government elections Social work Sport Tourism Health and social services economic development education and training culture and creative industries Transport (excluding some)
Westminster will still continue to make laws for Scotland in many important areas, these matters are ________ to the UK parliament
matters are reserved to the UK parliament
What Act lists matters that are reserved by the UK parliament?
Schedule 5 of the Scotland Act 1998
Is the majority of business law related to the schedule 5 reserved matters?
YES!
The majority of it
there are some differences on certain matters
Schedule 5 of the Scotland Act 1998; matters reserved to the UK Parliament
Broadcasting Costitution Consumer protection Defence and Security Employment Equal opportunities Energy
Economic and monetary policy inclusing currency and interest rates foreign policy immigration social security telecomunications trade and industry
Do the acts of the Scottish parliament have a) higher or b) lower status than the acts of Westminster?
LOWER!
What are the Acts of the Scottish Parliament known as?
secondary/delegated legislation
- due to their lower status
The Sewel motion
Scotland must see consent from Westminster to pass laws in Scotland; Westminster will introduce a bill/Act which covers the whole of the UK, not just Scotland who asked for the bill.
Scotland Act 2016
What must Westminster have before they can legislate a delegated Matters?
Parliaments Expressed Approval
Scotland Act 2016
Gives Sewel motion a statutory foundation which means that Westminster will have to have the expressed approval of the Scottish parliament before it can legislate the delegated matters.
Benefits of the Sewel Motion
It saves the Scottish Parliament time
opportunity to avoid certain issues/ not to legislate on certain issues
How many Chambers does the Scottish Parliament have?
ONE CHAMBER!!
The Scottish Parliament Bills consist of: The government executive Bill Committee Bill Members Bill Name the types of Bills in Westminster.
Westminster:
Government Bill
Member’s Bill
Westminster: (the process of the bill)
The Bill must pass through The House of…
The house of Commons AND the house of Lords
The Scottish parliament:
The Bill must pass through…
only one chamber;
The Westminster Committee system is a) more powerful or b) less powerful than the Scottish parliament?
a) Less powerful
Why? Because the Scottish parliament committee can introduce a new bill. Westminster committees do not have that power
Individuals have more chance at introducing new bills to which Parliament?
The Scottish parliament, there is more chance of success!
Scottish Parliament
Public Bill applies to whom?
The society as a whole
Scottish Parliament:
A private Bill applies to whom?
applies to a small group of people/ particular organization/ body
Scottish parliament:
For a Bill to become an Act of Parliament who must it go through?
The Scottish Parliament
AND
Have a Royal Assent
How many stages are there in the Scottish Parliament for passing a bill?
3 Stages
Scottish Parliament: Public and Private Bill STAGE ONE
What is the difference between public and private first stage of passing a bill?
If it is a private bill a decision is to be made whether it should proceed as a Private Bill or whether it should change to a Public Bill.
Consideration of the Bill’s General principles takes place with both Public and Private!!
Public and Private Bill; STAGE 2…
within the private bill, what is the second stage known as?
Considerations of the details of the Bill
Known as the consideration stage
Stage 3/final stage (Private Bill)
Final consideration of the Bill and a decision is made whether or not to pass or reject it
Once the bill has been accepted by Parliament it must be seen by…
Royal Assent
Delegated Legislation (subordinate/secondary legislation)
ways in which the laws can be introduced very quickly without having to get it through the whole legislative process.
Every Act passed by the Scottish parliament is a _____ legislation
Delegated, secondary, subordinate Legislation
Statutory instruments;
‘Delegate power to the government minister to make a new law’
The Parent Act;
No need to consult with the parliament
Name the benefits of the Parent Act;
Time saving/ parliament can focus on more important matters
BENEFIT: The first Minister provides a report about the operation of new rules
What Act is this benefit from?
The parent Act
The Act must stay within the power given by the Parent Act; why is this Act criticised?
quite a number of new legislation were introduced without appropriate debate around the legislation.
The court of session can make laws which regulate the \_\_\_\_\_\_\_\_ of business in all the Scottish Civil courts Fill in the blank and; Which Act is this: Acts of Adjournal Parent Act Acts of Sedernut
CONDUCT
Acts of Sedernut
The Acts of Adjournal organises the business and procedures of the High court of Justiciary and the lower Scottish criminal courts.
Who can introduce these Acts?
The high court of Judiciary
By-Laws;
A Parent Act gives law-making powers to an inferior body.
Acts Passed by the Scottish Parliament
licencing acts give powers to inferior bodies such as local councils to make legislations
true or false
true
By-Laws; what is an example of an inferior body that a parent act gives law making powers to?
Local Council
By-Laws are created by who?
Lower level bodies
Delegated legislation is less time consuming and can be used to respond rapidly in emergencies to come up with legislations
it can be mended rapidly.
Benefit
COMMON LAW: INSTITUTIONAL WRITINGS
Judicial precedent (Case Law) is also known as
stare decisis
The practice of following previous Judicial Decisions is known as the…
Judicial Prededent
A previous Judicial Decision is formed of two parts:
The ratio decidendi and the…
Obiter dicta
The Ratio Decidendi
The actual legal rule established by the court case
The Ratio Decidendi is often a long explanation
True or False
False; it is only a few sentences
Statements or Examples provided by the judge
a) Obiter Dicta or b) The Ratio Decidendi
a) Obiter Dicta
Obiter Dicta
explanation provided by the judge is not part of the judgement. Why?
They are not binding on future cases but merely persuasive.
In case law The Ratio Decidendi is important in case law; the law that most often should be followed, except in some cases;
Judicial Precedent
Binding Precedents
Persuasive Precedents
The courts STATUS is going to have an impact on whether the decisions are binding precedents or
Persuasive precedents or disregarded.
Decisions of superior higher courts will have to be followed; binding precedents
Reason for Common law (Judicial Precedent (case Law));
Designed to provide consistency in the law and decision making.
the rules applied; interpretation of statutory provisions
The literal rule;
the words used in the legislation are given their everyday, ordinary or lit….
literal meanig
The rules applied; interpretation of statutory provisions
the golden rule; the judge applies the law literally, but in a way that avoids the creation of…
absurdities or injustices
Rules; interpretation of statutory provisions;
The judge ignores the wording in the legislation and instead examines what mischief the statute was supposed to cure
The mischief Rule
The purposive Rule; the words of the statute are interpreted in their ordinary, literal, and grammatical sense, as well as with reference to the context and purpose of the legislation
ordinary, literal and grammatical sense
the context and purpose of the legislation
A word should be constructed in its context (look at the statute as a whole to discover the meaning of a word in it)
what rule is this?
The contextual Rule
Who is referred to for guidance when there is no Statute or Legal Precedent on a point of law?
The “writings” of influential Scottish Lawyers between; 1655 and 1829
modern writings are not the law
COMMON LAW; Customs
Practices handed down over many generations
Must be well established and continue to be enforced
very rare these days
can be overruled by superior forms of law (Acts of Parliament, other legislation)
SCOTTISH LEGAL SYSTEM
has its own system of courts…
these existed before the treaty of England and for most parts have developed separately from the other jurisdiction in the UK
what are the types of laws in the Scottish legal system?
Common-Law; contract law, agency, and criminal law; most important
Statute law or legislation
Private and Public Law
Criminal and Civil Law
Name the type of law
The resolution of legal disputes between private individuals or organizations…
one having suffered loss as a result of the others wrongful behaviour
Civil Law
Civil Law is the dispute between persons (legal persons), private individuals or organizations
Give 3 examples:
Family Law Company Law Partnership Law Banking and Finance sale of goods and services Consumer Law Personal Injury Claims Trust Divorce
what are a legal person/ legal personality
a natural legal person or artificial person
give examples of both natural and artificial persons;
Artificially created by the law; limited company
natural; an individual
Criminal Law;
The prosecution of those individuals who threaten the ____ of society
Security
Criminal Law is between the person and the…
The State
How does the state Maintain Law and Order?
Punishing Criminal and antisocial behavior
CRIMINAL CASE
What is the terminology for R v Black
Prosecution (state) v Accused (black)
Civil Case;
what is the terminology for Blue v White ltd
Pursuer (blue)
Defender (white)
A criminal case is referred to as a) R v Black or b) Blue v White Ltd
a) R v Black
therefore a civil case is Blue v White Ltd
what is the legal consequence in criminal cases?
usually a punishment; fines, imprisonment
what is the legal consequence of a civil case?
a compensation to the wronged person
Criminal Case; the case must be proved beyond reasonable doubt
Civil Case; …
the case must be proved on the balance of probabilities
the burden of proof will rest with the …….. in a criminal case
the prosecution
the burden of proof rests with the…… in a civil case
Parties
if it is a criminal case it must go through the court system!!!
In the civil case it is up to the parties if they use the court system or not… they may settle the dispute outside of the court
Cases can arise where it is both criminal and civil cases.
one single evet can generate two cases, one criminal and one civil
Court Procedure; What happens in the Trial
Court:
first instance/trial; legal proceedings are first heard
Court Appeal; A higher court has the power to _____ and _______ outcomes of decisions of lower courts
review and change
Court Procedure:
Summary; procedure conducted with or without a jury?
covers less serious cases
without
solemn; the procedure is conducted with a jury- what type of cases does it cover;
the most serious cases
what is the jury made up of?
15 individuals
simple majority is enough to make a verdict
verdict guilty or not guilty, not proven
A criminal court procedire can either be a:
summary procedure or a solemn procedure
Criminal Case: The summary procedure: 95% of cases are under the summary procedure.
Only 5% of cases will be with te solemn procedure.
Criminal Case: The summary procedure: it is conducted without a jury.
What kind of cases does it deal with:
Less serious Cases
Criminal Cases: The solemn procedure: it is conducted with a jury and a sheriff and compared to summary procedure it covers the _____ cases
most serious cases.
Criminal Case: The solemn procedure is conducted by the judge/jury and who else?
The Sheriff
Jurisdiction: The power of the court cold be ____ by it factors such as geographical boundaries, order size, and…
The legal subject matter
Courts may only hear the cases that fall into their jurisdiction, the power of the court could be limited and this limitation could arise from what factors?
Geographical boundries
subject matter of legal issue
The size of the order
Scottish Civil court system: (Appeals)
Courts within the Civil court system:
The Supreme Court
The court session: outer house and inner house
The Sheriff Civil Appeal Court: Personal Injury Court and The Sheriff Court
The civil court can hear both civil and criminal cases?
TRUE OR FALSE
False only civil cases.
Key information: Civil Courts are facilities/resources that the state provides in order to sort civil disputes in a spaceful manner.
is it a requirement for people to use the civil court system?
No they have a choice if they want to take their case to court- it is up to the parties in the case.
The civil court system has been changed radically over the last few years. Reform Scotland Act 2014
What did this Act impact?
The structure and operation of the Civil Court System
civil court system change
court reform scotland act 2014; there were radical changes; impacted on struactre of court system and the operations.
The sheriff court: is the busiest Civil Court in Scotland and the…
lowest civil court in scotland
it has many cases
The Majority of the civil cases start in front of the Sheriff Court.
How is the Sheriff court organized
organised into Geographical units- called Sheriffdoms
The Sheriff court can hear all types of civil disputes and it is not limited to dealing with cases that involve small amounts of money.
How Many Sheriffdoms are there?
49- the most serious cases are seen at the High court of Justiciary
The personal injury court was established by what Scotland Act
The Scotland Reform Act 2014
The _______ injury court was established by the Scotland Reform Act 2014
personal
Where is the Personal Injury Court situated?
Edinburgh
The Personal injury court hears;
personal injury claims across Scotland
general personal injury cases above the value of £5000
industrial and work-based cases £1000
General personal injury cases above £5000 can be seen by The personal injury court?
Yes or No
YES
The personal Injury Court hears cases of industrial and work-based cases of £1000 and above
Yes
Can the personal injury court hear cases that are below the £1000 limit
Yes; the local sheriff decides if it would be better that the case was discussed infornt of the Oersonal Injury Court
The Personal Injury Court has Countrywide Jurisdiction
The Sheriff Civil Appeal court was created by which Scotland Act?
The Scotland reform Act 2014
The sheriff court and personal injury court can go to the sheriff civil appeal court (Edinburgh); they will hear appeals from sheriff courts
all sheriff courts will have to abide by the decisions of the appeal court
Where does the Sheriff Appeal court operate?
Edinburgh
A decision by the court will be regarded as binding legal precedence so all of the sheriff courts in Scotland will have to follow the decisions made by the sheriff appeal court.
The court of session;
Inner and outer house
what is the court of session?
Scotland’s supreme Civil Court- it has a permanent headquarters in Edinburgh
The court of session hears what type of cases?
first instance cases and outer cases
there are two houses within the court of session:
The outer and Inner houses
small claims are up to the value of….
£3,000
The Outer House has Trial cases and the inner house deals with the
Appeals
The jurisdiction for the court of session is for the whole of Scotland; with the exception that the sheriff court has exclusive competence to hear the cases; means that first instance cases more than £100,000 will have to be discussed in front of the sheriff court.
Until 28th November 2016 the Sheriff court: ‘exclusive jurisdiction’ to hear cases of up to the value of £100,000
small claims up to the value of £3000
summary procedure up to the value of £5000
ordinary procedure excess of £5000
From 28th November 2016:
Simple procedure for claims with a value of up to £5000 instead of small claims and summary procedure
Civil online
From 28th November 2016 small claims and summary procedure became what?
Simple procedure for claims with a value of up to £5000
Makes the procedure inexpensive and gives a chance for everyone to use simple procedure
Court of session excess of £100,000
Summary procedure are up to the value of…
£5000
ordinary procedure is up to the value of £5,000,
from 28th of November 2016
simple procedure for claims with a value of up to £5000
Criminal Court System: criminal law is used by the state to protect the community/society by punishing individuals who endanger the security or safety of the public.
It is a PUBLIC prosecution system: controlled and supervised by the state authorities.
in criminal cases they go through the criminal court system
can individuals decide not to go through the criminal court system?
No they cannot make a decision not to go through the system unlike civil court system.
The Scottish criminal court system is a)private or b) public
Public and controlled by the state
The Sheriff court: what are the two types of cases that can be presented?
Summary and solemn.
In summary cases the decision is made by who?
the sheriff
in a solemn case the ____ will be involved
jury
The justice of the peace court deals will what type of cases; summary or solemn
Summary
sheriff criminal appeal court there is
the sheriff court and the justice of the peace court (will be summary cases)
the justice of peace deals with less serious types of crimes.
it is the lowest level of criminal courts in Scotland
takes on crimes that are committed within its local authority
The justice of peace is not necessarily legally qualified- their work will be supported by legally qualified assessors (someone with the appropriate legal qualification)
The justice of peace
The justice of peace will deal with less serious cases such as
assault where there is no injury
where the victim does not suffer any wounds/ broken bones…
make decisions in the case of theft
of house break ins
vandalism
Tv licencing
road traffic offenses- driving without insurance
Crimes that are extreme will be tried in front of the high court of justiciary: True or False
true
The High Court of Justiciary is the most ______ criminal court in Scotland
Powerful
summary cases and solemn cases shown to the sheriff; they will make a decision whether they are innocent or guilty and decide on their punishment.
the sheriff will be supported by the Jury
There can only be appeals against this decision against the Supreme court of the UK is related to human rights, devolution, or devolved matters if not it will be the highest level of criminal court.
The Supreme Court can be seen as a Trial Court or as an Appeal Court- Appeals against first instance cases in front of The High court of Justiciary will be discussed in front of the Criminal appeal court.
First Instance Cases will be discussed in front of The Scottish Court of…
Criminal Appeal
What is The Scottish Court of Appeals Jurisdiction?
The whole of Scotland- for all kinds of crimes committed in Scotland
What procedure is most commonly followed by The Scottish Court of Criminal Appeal? (in Edinburgh)
Solemn Appeal; The jury is involved in decision making
What types of cases will The Scottish Court of Criminal Appeal deal with?
more serious cases/crimes; solemn procedures
When the Scottish Court of Criminal Appeal deals with Appeals it sits in Edinburgh (HQ)
When it deals with the first instance where is it situated?
Sit Trial Courts in Cities and larger town all over Scotland.
Courts reform ‘ report of the Scottish civil court review’ September 2009
when was the Scotland reform Scotland act introduced
2014
Why Was the Courts Reform Act (Scotland) 2014 introduced?
There were concerns about the quality of the Scottish Civil Justice- whether it could effectively meet the needs of the individuals it serves.
Main changes to court services (procedures and processes)
Courts Reform Act 2014
redistribution of civil business from the court of session to the sheriff court by raising the exclusive competence of the sheriff court from £5000 to £100,000
Courts Reform Scotland Act 2014: Established a Sheriff Appeal Court and Established a specialist…..
Personal Injury Court
The Court Reform Act 2014:
Redistribution of civil Business from the court of Session to the Sheriff Court by raising the exclusive competence of the Sheriff court from £5000 to £???
£100,000
AGENCY
Define Agency: Relationship between…..
Agency is a relationship that exists between two legal person ( the principal and the agent) in which the function of the agent is to form a contract between his principal and a third party
From an agency Definition, it is clear to see that there are ____ parties involved.
How many parties are involved?
3
Agency: The law of Agency is an area of C______ Law
Commercial
Third parties/intermediate
The three parties involved in an Agency are…
Principal
Third-Party
Agent
The Agency (agency contract) relationship/primary contract is between the principal and
The Agent
The Agency contract/ primary Contract is between who?
The Agent and the Principal
The agency contract: the agent will represent the Principal.
How will the Agent represent the Principle?
The Agent will negotiate on behalf of the Principal.
The agent will negotiate with third parties on behalf of the principal.
As a result of the negotiation made by the Agent on behalf of the principal what is the contract that will be formed?
The Secondary Contract
What is the Secondary Contract?
Legally Binding Agreement between Principle and Third Party
TRUE or FALSE
There is a contract between the Agent and the Third Party?
FALSE- There is no contract between the Agent and the Third Party.
AGENCY Relationship:
Principal: The party who employed another person (the Agent) to act on his or her behalf- in dealing with Third Parties
AGENCY Relationship:
The Agent: The part who agrees to act on behalf of the Principal
They are the legal representative of the principal
They negotiate…
They negotiate and enter into a contractual agreement on behalf of the principal with third parties.
Example of Agency relationships;
Agents are:
accountants, solicitors, architects, auctioneers, managers, company directors…
partners in a partnership (agent of the partnership and agents)
Example of Agency relationship: House Seller Solicitor House Buyer who is the agent, third party, and principal?
House seller is the principal
Solicitor is the Agent
House buyer is the third party
Why appoint an agent?
it is not possible for a principal to carry out every single task necessary;
delegate the task to an agent,
as they are likely to be too busy
or prefer that someone else concludes the agreement.
why appoint an agent?
For their skills and expertise, or experience in particular areas
accountants for example
Difference between employees and agents:
An employee has a list of duties that they perform in return for a wage- they carry out services for the principal under an employment contract
employee contract
Difference between employees and agents:
An Agent represents the principal for a fee and can enter into contract on their own behalf which results in a legally binding contract.
The agent is free of legal obligation- carries out services for the principal under a contract for service
Under a contract of service b)
under a contract for service a)
which one is an agent which one is an employee
a) agent
b) employee
Can an employee be an agent?
A solicitor who works permanently for a legal department of a company then they will be an agent and employee.
