Exam Notes (Scottish Legal System) PDF

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Scottish Legal System OVERVIEW OF ESSENTIAL KNOWLEDGE B. WHAT IS A COURSE ON A LEGAL SYSTEM? Primary law: “must” or “must not” (what or what not to do) Secondary law: rules about rules (determine validity and effectiveness; rules that define how rules get made or procedural rules) A legal system cou...

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Scottish Legal System 1. OVERVIEW OF ESSENTIAL KNOWLEDGE B. WHAT IS A COURSE ON A LEGAL SYSTEM? • Primary law: “must” or “must not” (what or what not to do) • Secondary law: rules about rules (determine validity and effectiveness; rules that define how rules get made or procedural rules) A legal system course is mainly made up of legal rules about legal rules: • What is a source of law? • What are the rules defining how rules are made and how they fit together? • What are the rules for running a court system? It is also about methods: •How do you go about the business of using rules accurately, effectively and creatively, both as a student and eventually as a practitioner of the law? C. WHERE ARE WE (GEOGRAPHICALLY AND IN LAW)? • Scotland: country (own legal system: not a state: cannot interact with other states, e.g. Germany: e.g. cannot make treaties)

- NB: Treaty of Union, Art XVIII (preserving Scots law; Art XIX (preserving the Court of Session or “College of Justice” • Great Britain: became a state (“United Kingdom”) with single unified Parliament by Acts of Union of 1708, Arts (I, II) (NB: King James I of “Great Britain”)

- 1603 - 1707: Scotland, and England and Wales were two kingdoms which shared a common sovereign (James VI/I and his successors in the House of Stuart) • The United Kingdom of Great Britain and Northern Ireland: England and Wales, Scotland and Northern Ireland (separate legal systems) (not part of the UK: Channel Islands, Isle of Man) • European Union: 28 Member States (own legal system), incl. UK (not to be confused with 47 member states of Council of Europe: responsible for promoting international treaties, incl. the European Convention on Human Rights (umbrella union: not confined to EU states)

- The ECHR has been embedded into domestic UK law by Human Rights Act 1998 • The British Isles: group of islands comprising Great Britain and island of Ireland, and their adjacent islands • The British Islands: the UK, and the Channel Islands the Isle of Man (each of which are own countries with legal systems but dependencies of the British crown) • All different countries, states and groupings of states produce their own laws

- “hierarchy of norms”

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- “rules of legislative competence”: different law making bodies have different spheres of competence (all else is void): limits of power

- ‘secondary rule’: Scots Law: how do we fit all laws together from different groups? D. THE FORMAL SOURCES OF SCOTS LAW • Source of law: rules of law are not good conduct, ethics or morality • Historical sources: legal rules originating from political, moral and social ideas, e.g. Equality Act 2010 • Formal validity of laws: source or where they come from (e.g. form, place, where it’s made) • Formal sources of Scots Law: (a) Legislation (enacted law)

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Acts of the UK Parliament Laws made by Ministers of the Crown under powers delegated by UK Parliament Acts of Scottish Parliament under powers delegated by UK Parliament Laws made by Scottish Ministers under powers delegated by the UK Parliament Laws made by Scottish Ministers under powers delegated by the Scottish Parliament

- European Union Legislation (b) Judicial precedent (unenacted case law)

- the rules of the law produced by courts without reference to the UK Parliament or other legislature (c) Institutional works of authority

- e.g. Stairs Institutions; Bells Commentaries on the Law of Scotland (d) Custom

- Practices observed by groups of people • Formal sources: legal significance (understand the primary, formal sources of law on their own terms, not the secondary sources that describe them) • Quasi-sources: ‘soft law’: do not have legally binding force, or have very weak legally binding force, such as certain international law RANKING OF SOURCES • Sources are ranked in order of precedence: 1. Legislation: ‘Convention rights’

- Name given to the rights and freedoms contained within the ECHR (copied in Human Rights Act 1998: UK Parliament)

- Courts, gov and other public authorities must interpret all other laws, both existing and future, consistently with them

- If other Acts of UK Parliament (not laws) cannot be interpreted with them, Convention rights are overridden (can be claimed by European Court on Human Rights)

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2. Legislation: ‘Community law’

- Law created by the EU: all existing and future law is valid only in so far as it is consistent with EU law (required by European Communities Act 1972)

- EU law must still be interpreted with ECHR 3. Legislation: ‘UK Parliamentary legislation’

- Law passed by UK Parliament in Acts of Parliament: subject to the first two, UK Parliament may pass any Act (∴ more powerful than following means of law) 4. Legislation: ‘Scottish Parliamentary legislation’

- Law passed by Scottish Parliament in Acts of the Scottish Parliament by virtue of UK Parliament delegation (Scotland Act 1998 and Scotland Act 2012)

- Powers are devolved unless specifically reserved 5. Legislation: Other delegated legislation

- Law made by members of UK gov or Scottish gov, or other gov bodies (e.g. local authorities) in the form of Statutory Instruments (and Scottish Statutory Instruments), by-laws, etc (by virtue of UK Parliament (or Scottish Parliament))

- Only permitted by delegation in relevant legislation 6. Legislation: Earlier and later legislation

- Later legislation may repeal or amend earlier inconsistent legislation implicitly, even if not done explicitly 7. Judicial precedent: Precedent and legislation

- Laws made by judges in deciding cases in courts, in the absence of legislation (valid when compatible with legislation) 8. Judicial precedent: Higher and lower courts

- Higher courts can overturn the law created by judicial precedent in lower courts 9. Judicial precedent: Earlier and later judicial precedent

- No precedent contradicts any other, ∴ to strive to maintain whole body of judicial precedent as a coherent and consistent whole 10. Minor sources

- (rare): Law made by a variety of disparate bodies: law made by the minor sources may be drawn on in default of any of the above E. LEGISLATION • Many different forms and is identified by the legislature which creates it • Scots law is a ‘mixed’ system of both civil and common law: Scots law is not codified • Consists in written words: written law for Scots legal system, ∴ meaning is defined by the words the rule is expressed with (interpreting words)

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• Legal rules confer different law-making powers upon various legislatures (secondary rules) • Legislation is a process and a product of the law that is deliberately produced

THE LAW OF A STATE • Arranged in a hierarchy of importance and authority • UK accepted Treaty of Rome and entered European Community: ∴ European Union Law takes precedence over UK law (European Communities Act 1972) • UK Parliament has incorporated parts of the European Convention on Human Rights (ECHR) into the Human Rights Act of 1998 • Enacted and judge-made law 1. The Nature and Style of UK Parliamentary Legislation (Including Human Rights Legislation) Parliamentary Legislation, Human Rights, Community Law and Devolution • Acts of Parliaments (‘statutes’): normal form of legislation in the UK • ‘Parliamentary supremacy’: no legal boundaries to Parliaments legislative power, only boundaries created by the political prudence and morality of its members: in law, may pass any Act to any effect

- UK Parliament may legislate on ‘human rights’ issues: however, ‘human rights’ has come to be seen as a means of limiting the ability of legislatures to enact laws, thus at least touching upon parliamentary supremacy

- European Convention on Human Rights (ECHR): limit in UK - ‘Parliamentary supremacy’: means UK Parliament may legislate on matters within the remit of the EU: idea of ‘direct effect’ of EU law is designed to limit powers of legislatures of Member States on matters within the Union competences, thus to limit parliamentary supremacy in those areas

- Introduction of devolution: devolved legislatures are taking over responsibilities within their competences, thus removing from the UK the need to legislate on those matters

- ∴ Acts of Scottish Parliament are gradually taking over role of normal legislation in areas not reserved to Westminster Format of Legislation: Short Title, Chapter Number and Arrangement of Sections

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• UK Acts commence with ‘Short Title’, e.g. ‘Scotland Act 1998’ [all acts have a short title according to Short Titles Act 1896 and Statute Law Revision (Scotland) Act 1964)] • Includes year of enactment • If a series of related Acts exists, last may give a collective title: e.g. Official Secret Acts 1911-89’ or ‘the Immigration Acts’ • Short Titles often incorporate brackets: e.g. ‘(Amendment)’, ‘(Miscellaneous Provisions)’ • Acts of the UK Parliament have a ‘chapter number’: the sequential number of that Act in the year: e.g. ‘chapter 15’, ‘chap 15’, ‘ch 15’ or ‘cap 15’ (taken with year of enactment ∴ provides unique reference number of that act: the ‘citation’), e.g. ‘1998 c46’ refers to Scotland Act 1998 • Acts of greater length: ‘Arrangement of Sections’: contents list of ‘Sections and Schedules and their Marginal Notes’ Long Title, Date of Royal Assent and Preamble • ‘Long Titles’: indicate and delimit the subject matter of the Bill • ‘Date of Royal Assent’: given at end of Long Title, in square brackets (date when formally enacted) • Preambles: occasionally used: ‘Whereas…’ The Enacting Formula • ‘Enacting Formula’: immediately before substantive provisions: validating incantation, recording enactment • Four forms: basic, taxation legislation, gov. Expenditure legislation and legislation under Parliament Act 1991 Sections, Marginal Notes and Marginal References • ‘Section’: basic unit of a UK Act: numbered sequentially • Break down content into ‘Sub-sections’, ‘Paragraphs’ and ‘Sub-paragraphs’ • Typically:

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Section 1 (emboldened) Sub-section (1) (unemboldened) Paragraph (a) (unembolded) Sub-paragraph (i) (unemboldened)

• Allows precise identification of provisions: e.g. ‘Consumer Credit Act 1974, s 10 (3)(b)(i)’ or ‘Nationality, Immigration and Asylum Act 2002, s 5(b)’ • Where an amending Act inserts a whole new Section: it is identified by a capital letter after the preceding number

- A new section after ’s 1’ is thus ’s 1A’: its sub-sections ’s 1A (1), 1(A)(2)’ - Inserted sub-sections: e.g. s 140(3) of Nationality, Immigration and Asylum Act 2002 inserted new paragraph between s 87(3)(e) and (f): ’s 87(3)(ea)’ • Marginal Note: signpost used in relevant entry in Arrangement of Sections

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• If section in one Act refers to another Act, e.g. to amend it, an abbreviated citation can be given in margin, e.g. s 22 of Immigration… Act 1999 affects Asylum and Immigration Act 1996, so in the margin of the former, next to s 22, appears ‘1996 c49’ (citation of earlier Act) • Commercially produced texts: ‘section’: ’s’ and brackets around sub-section number are removed Headings • Groups of sections may be collectively labelled as Parts, with capital roman numerals and entered capitalised names, e.g. ss 1-31 and ss 32-43 of the Immigration and Asylum Act 1999: ‘Part I: IMMIGRATION: GENERAL’ ‘PART II: CARRIERS’ LIABILITY’ • Parts can be divided into ‘Titles’ or ‘Chapters’ • Smaller groups of Sections are likely to be labelled by a ‘Cross-heading’: centred and italicised, e.g.: ‘Leave to enter, or remain in, the United Kingdom’ ‘Exemption from immigration control’ • Common usage: label ‘Supplementary’ or ‘Miscellaneous and Supplemental’ in last few Sections Interpretation Sections • Usually identified by the Marginal Note) • Commonly found towards the end often in the Supplementary section • Specify the meanings of words and phrases for the purposes of the Act Repeals and Amendments • Act may specify a terminal date (‘sunset clause’) • UK Acts repeal or amend earlier Acts • Textual or direct method: substitutes a new provision for the old • Referential or indirect method: leaves original and describes how it should be changed Transitional Provisions • UK Act is repealed or amended: transitional difficulties: Transitional Provisions provide a solution Commencement Provisions • Acts of Parliament (Commencement) Act 1793: a UK Act comes into force on the Date of Royal Assent, unless specified otherwise

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• Commencement Section usually found in Supplementary Short Title Provision • A provision at the end of a UK Act officially gives it its Short Title • “This Act may be cited as…” Extent Provisions • Stipulate which law areas they apply Schedules • Must be specifically incorporated into the Act by a Section • Appendices containing detailed matter Explanatory Notes • Attempt to explain in lay language what each provision of the Act does • No official status 2. The UK Parliamentary Legislative Procedure • The proposal for legislation presented to the UK Parliament is called a Bill Who Seeks Legislation and Why? • Some government legislation is party political ‘manifesto legislation’, e.g. the community charge or poll tax • Other legislation emerges as a reaction to events • Most legislation emerges from the departments of governments Pre-Parliamentary Stages of United Kingdom Parliamentary Legislation - ‘The Whitehall Stage’ • Consultation is a major part of the pre-parliamentary stages • The Law Commissions are of considerable importance in relation to certain types of legislation • Draftsman’s roll is pivotal • UK government department tells its lawyers the policy the Bill is to promote, and these lawyers draft instructions for Parliamentary Counsel

- Initial drafts of UK or GB Bills are sent to the Advocate-general for Scotland’s office for comment

- A team of two or three Parliamentary Counsel draft the Bill, and the ‘Explanatory Notes’ which accompany Bills, in liaison with the sponsoring department • Put into legislative form • Bill must fit into existing law without contradictions • Bills must be competent for the UK Parliament • Bills should not offend Convention rights

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Parliamentary Stages of United Kingdom Parliamentary Legislation - ‘The Westminster Stage’ • The Enacting Formula of an Act records that the three parts of the UK Parliament have agreed • A Bill may be introduced into either House of Parliament first, by any MP or peer • Most Bills are government bills introduced to the Commons first • Stages in each House are called “First” and “Second Readings”, Committee Stage, Report Stage and Third Reading • Royal Assent follows automatically: makes the Bill an Act Enactment, the ‘Sewel Convention’ and ‘Sewel Motions’ • During the passage of the Scotland Act 1998, the government indicated the expectation that a convention of the constitution would arise: the UK Parliament would legislate rarely and only with the consent of the Scottish Parliament Special cases Human Rights Legislation • European Convention on Human Rights and Fundamental Freedoms (ECHR) • UK is a member of the Council of Europe • UK: Human Rights Act 1998 • UK law is compatible with ECHR Financial Legislation • UK constitution requires that there be annual financial legislation Legislation Under the Parliaments Act 1911 and 1949 • Legislative powers of the House of Lords are constrained by the Parliaments Acts 1911 and 1949 Statute Law Revision and Statute Law Repeal Legislation • Legislation in a common law or mixed jurisdiction is ad hoc, and grows by accretion Consolidation legislation • Placing all provisions on a topic into a single coherent Act Codification • A single statute incorporating all the law on the subject from all the sources The Legislative and Regulatory Reform Act 2006

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• Allows the Government to amend existing legislation in order to remove vaguely expressed ‘burdens’, subject to vaguely expressed safeguards, with limited reference to Parliament Private Member’s Legislation • Bills introduced by any MP or peer • ‘Ten-minute rule’ • Private Members’ ballot Law Commission Bills • UK Parliament set up a procedure for politically uncontroversial Bills proposed by the Law Commissions under which the Bill in question begins its parliamentary journey in the House of Lords, where it is mainly considered by a reasonably expert Special Public Bill Committee • Then passed on to House of Commons 3. Legislation: Acts of the Scottish Parliament THE INSTITUTIONAL BACKGROUND Devolution and the Nature of Acts of the Scottish Parliament • Acts of the post-1998 Scottish Parliament • Devolution is making Acts of the Scottish Parliament the normal method of legislating for Scotland • All legislative powers that are not specifically reserved to the UK Parliament are devolved to the Scottish Parliament • The concept of ‘legislative competence’ indicates that Acts of the Scottish Parliament are ‘subordinate’ or ‘delegated legislation’: made under the powers delegates by the sovereign UK Parliament, in the Scotland Act 1998 and the Scotland Act 2012 THE NATURE AND STYLE OF SCOTTISH PARLIAMENTARY LEGISLATION The ‘Sewel Convention’ and ‘Sewel Motions’ • There has been much legislation enacted by the UK Parliament in relation to Scotland, even within the devolved legislative competence of the Scottish Parliament, through the medium of ‘Sewel Motions’ • Motions passed by the Scottish Parliament effectively requesting that Scotland be included in the Westminster Legislation Acts of the Scottish Parliament: Types and Form

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• Modelled upon UK Acts • Most are ‘public’ and ‘general’ Short title, ‘asp Number’ and Contents List • Commence with a Short Title, normally with brackets ‘(Scotland)’ • Bear ‘asp’ Number (Act of Scottish Parliament number) Statement of Enactment • Statement indicating its parliamentary passage in the form: “The Bill for this Act of the Scottish Parliament was passed by Parliament on the … and received Royal Assent on …” Long Title and Preamble • Long Title: delimiting the scope of the Bill introduced into the Parliament Sections and Marginal Notes • Basic unit of Acts of the Scottish Parliament Headings • Groups of sections may be grouped under ‘Cross-headings’ and into Parts and Chapters Interpretation Sections • Provides meaning Repeal and Amendment • Acts continue in force unless repealed or amended Transitional, Commencement, Short Title and Extent Provisions • Same manner as UK statutes Schedules • Same manner as UK statutes Explanatory Notes • No official status 4. The Scottish Parliamentary Legislative Process • Proposed Acts of the Scottish Parliament, by s 28(2) of the Scotland Act 1998, ‘shall be known as Bills’ Who Seeks Legislation and Why?

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• Scottish Government • ‘manifesto legislation’ • Reaction to events Pre-Parliamentary Stages of Scottish Parliamentary Legislation • More open to the population Parliamentary Stages of Scottish Parliamentary Legislation and ‘Pre-enactment Checks’ on Legislative Competence • Any member of the Scottish Parliament may introduce a Bill, and when a Bill is introduced, s 31 of the Scotland Act 1998 requires the person introducing it to state that it is within the Scottish Parliament’s ‘legislative competence’ • ‘pre-enactment’ checks • Required by the Standing Orders of the Scottish Parliament to have ‘accompanying documents’ • Statement of Enactment records the date the Bill was introduced, and the date it received the Royal Assent • Stage 1: 1. Bill is referred immediately to the relevant Parliamentary Committee which considers and reports on the general principles 2. Parliament debates the general principles in light of the Committee report • Stage 2:

- Considers each provision of the Bill • ...