Legal System short essay summaries PDF

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What significance do and should the institutional writers have in the modern legal system? ●

Scots law comes from a variety of sources. It is often questions how much influence these writings hold on our modern legal system.

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Lawyers from the 17th and 18th centuries, called institutional writers, wrote books setting out the principles on which Scots law is based, lawyers today still look at what the institutional writers said about the law and apply these principles to modern day situations.

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However, institutional writings carry much less weight to them compared to legislation, currently it is unusual for any court to justify its decision solely on institutional writing. It can be argued that these works provide more of a moral and intellectual sheet anchor for the law. An institutional work may be regarded as potentially decisive but only where no legislation or clear precedent exists.

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Institutional writings are considered as a minor source of law, meaning that they hold less influence compared to legislation and case authorities. In the past they held great relevance however as the bulk of legal works, acts and cases have grown over the decades their importance has decreased.

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Historically institutional writers based there works of the Roman ‘Justinian’s Institutes’ which were a sixth century codifications of Roman law. Their work remade Scot’s law. Viscount Stair, Institutions of the Law of Scotland (1681) is generally regarded as the greatest of the institutional writings. The significance of such works is that they have been accorded a special status. They are regarded not as commentaries, illustrations or textbooks on the law but as in themselves actually constituting the law. Thus, in effect the institutional writers have been regarded as similar to legislators.

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However, while it is undeniable that the institutional writers are sources of law themselves, recognition of this position is limited to a small number of 19th century cases, decided at a time when attitudes to the nature of the law was different to todays. Due to this no works have been added to the writings since the middled of the 19th century.

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In conclusion institutional writers are an important source of law. These writers claimed there works to be their own sources of law though gathering it, organising it and drawing inferences from it. However there relevance and influence in todays modern legal system can be brought into question as they are rarely used as primary citations as other sources of law bare much more importance such as legislation.

Explain the structure of Scotland’s criminal courts and assess whether it is too complicated. ●

The criminal justice system in Scotland consists of a complex set of legal processes based on principles of fairness, a respect for human rights and independent decision-making. It is adversarial in nature, which means the two sides involved in a criminal case oppose each other in court. The system must follow due process to

ensure the protection of individuals accused by the State and the presumption of innocence until proven guilty. ●

There are three types of court in Scotland to deal with different levels of offending the High Court of Justiciary, Sheriff Court, and Justice of the Peace Court and two types of system for hearing cases, solemn and summary. Solemn cases are concerned with the most serious offences, such as murder, rape or serious assault, and are decided by a jury in either the High Court or the Sheriff Court. Summary cases deal with other criminal activity, for example breach of the peace, and are heard in a Sheriff Court (by a sheriff) or a Justice of the Peace Court (by a justice of the peace) without a jury.

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Within the court system, there are different stages, or ‘diets’ each case must go through. These comprise the pleading diet, when a case is first called; intermediate diet, to check a case is fully ready for trial; trial diet, when the evidence is heard; and, if the accused is found guilty and the sheriff or justice of the peace wants background reports before sentencing, a separate sentencing diet. These diets have different names in solemn cases but the process is broadly the same.

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If the court finds an individual guilty, the judiciary will pass a sentence. There are three main types of sentence: custody when the individual is sent to prison community sentences or, most commonly, a fine. There are a number of different options for a community sentence, for example, Community Payback Orders or Drug Treatment and Testing Orders.

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Scotland, unlike most of the world's legal systems, has three possible verdicts in criminal cases; guilty, not guilty and not proven. Not proven is seen by some as offering additional protection to the accused. However, critics argue that it is confusing for juries and the public, can stigmatise the accused person and fail to provide closure for victims. Giving weight to the option that criminal courts can be complicated to the general public. In more recent years, the general perception has been that a "not proven" verdict suggests a sheriff or jury believes the accused is guilty, but does not have sufficient evidence to convict, undermining the criminal justice system, leading to the perception that such a third verdict is unnecessary.

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There also has been criticism over the UK supreme court in connection with the independence of Scotland's legal system. Preserved by the Act of Union 1707, the legal system in Scotland is independent. The supreme court is a newer feature of Britain’s legal system. It started work in 2009 after it was established by the Constitutional Reform Act 2005. As a 'supreme court' it is the highest court for appeals. This means a verdict upheld at a lower court can be overturned by the supreme court. The court also covers the English and Welsh, Northern Irish and Scottish legal systems. In Scotland it covers civil law appeals and cases relating to devolved matters are heard by the supreme court, above the court of session in Edinburgh. Criminal cases in Scotland are not heard by the supreme court - unless the appeal is on human rights grounds.

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The high court of justiciary in Edinburgh remains the highest court of criminal appeal for Scotland. Few Scottish cases are considered by the court and cases that are heard do not necessarily uphold appeals. Criticism was made in the context of two Scottish court verdicts being overturned by the supreme court, for example in the

case of Fraser v HMA, the conviction of murder was overturned on human rights grounds. Such cases were viewed as the supreme court overruling Scots law in a criminal case, and therefore further eroding the autonomy of the Scots law system. Further complicating Scottish criminal courts on grounds of legal sovereignty. To what extent can there be said to be sovereignty of the UK and Scottish parliaments? ●

Parliamentary sovereignty is a principle of the UK constitution. It makes parliament the supreme legal authority in the United Kingdom, which can create or end any law. Generally, the courts cannot overrule its legislation and no parliament can pass laws that future parliaments cannot change. The Act of Union 1707 placed limitations on the parliamentary sovereignty of Scotland, as to previous to this Scotland had its own sovereign legislature. Over the decades there have been some developments that limit parliamentary sovereignty in the United Kingdom.

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Dicey identified three fundamental principles of parliamentary sovereignty. Firstly, parliament can make or unmake any law, for example, the Septennial Act 1715, extended the of parliament from three to seven years. Another example is the War Damage Act 1965 which overruled a House of Lords decision in Burmah Oil Company V Lord Advocate, which is a demonstration of parliaments ability to make or unmake any law, as it was able to legislate with a retrospective effect.

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Secondly, parliament cannot be bound by its predecessors or bind its successors. This affirms Thomas Paines theory that ‘every age and generation must be free to act for itself’ Where it was held that the provisions of the later act would apply; this is known as ‘implied repeal’ and demonstrates parliaments inability to bind its successors.

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Finally no one can questions parliaments laws. The courts cannot question the validity of an Act of Parliament or declare it void, illustrating the role of the judiciary in upholding the principle of parliamentary sovereignty. For example in R(Jackson) v Attorney General the validity of the Hunting Act 2004 and the use of the Parliament Act 1949 were challenged. However, it was affirmed that regardless of the way an act was passed, even using the Parliament acts, the courts cannot challenge the validity of primary legislation.

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However, some developments have effected parliamentary sovereignty. Parliament itself have passed laws that limit the application of parliamentary sovereignty. For example the devolution of power to bodies such as the Welsh assembly and the Scottish parliament. For example the Scotland Act 1998 granted Scotland the devolved power of Education, this means that the Scottish Parliament is responsible for funding and running the education system in Scotland, from nurseries to universities. However, ultimately funding comes from the UK Treasury which is allocated by Westminster. This balances out the independent sovereignty of the Scottish parliament.

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The United Kingdoms entry into the European Union in 1973 also limits its parliamentary sovereignty. The supremacy of European Union law takes priority over conflicting laws enacted by individual Member States. For example, any laws passed by the UK parliament will have to adhere to the Human Rights Act 1998, undermining

Dicey’s principle on making and unmaking any law, as limitations are now in place. For example David Cameron criticised European Convention Human Rights for the limitations it placed on extraditing known terrorists, thus illustrating the limitations on UK parliamentary sovereignty as it is limited by supreme EU law. What is the difference between primary and secondary legislation, and what type of legislation is produced by the parliament at Holyrood? ●

In parliamentary  systems of government, primary legislation and secondary legislation are two forms of law, created respectively by the l egislative and executive branches of government. Primary legislation consists of statutes that set out broad outlines and principles, they delegate specific authority to an executive branch to make more specific laws in reference of the primary act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them. Holyrood produces legislation regarding devolved matters in Scotland.

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Primary legislation is the general term embracing main laws passed by the legislative bodies of the United Kingdom such as Acts of Parliament, Acts of pre-UK Parliaments, Acts of the Scottish Parliament. The actual formal procedure of passing the Act in Parliament is very complex and difficult. It starts with its representation as the Bill, usually in the House of Commons in a first reading. Subsequently, in a second reading it undergoes a very close scrutiny and debate where various amendments may be applied. In the final third reading, the Bill is introduced without the possibility to be further amended. After that, the Bill goes to the House of Lords where more or less the same procedure is applied.

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In contrast with primary legislation, secondary legislation is subordinate law made by the executive branch within the boundaries laid down by the legislature nevertheless with the same legal force. The powers to make secondary legislative are usually conferred or delegated to ministers, public bodies or the Crown – for this reason also called delegated legislation. Secondary legislation is principally made in the form of Statutory Instruments and Regulations and their main purpose is to supplement, administer, support and enforce primary legislation.

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The secondary legislation-making process is not as complicated as in primary legislation and passing it is not so time consuming. Generally, it is made by being signed by the delegated person-usually from the field of expertise of the Bill; however in some cases the Queens assent may be needed. This makes the legislation very flexible and speedy as the circumstances change or unforeseen problems occur especially in the need of emergency. This way it also relieves the Parliament from specific debates concerning detailed technical matters which are in that case rather discussed with particular experts from the field what makes the law more precise and efficient.The main advantages of the system of delegated legislation in contrast with the primary legislation are that they allow the laws to be passed faster, more flexibly and make the laws more precise as they can be designed by those with the best technical knowledge on the area they will be used for.

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Any statutes passed at Westminster must be law while statutes passed at Holyrood may not be. Westminster Parliament has the right to make or unmake any law whatever. This means that, in theory, Westminster can legislate on any matter and in

whichever way it pleases. However, Parliament decided to limit its own powers in two ways. First, by passing the European Communities Act 1972 and thus allowing for EU law to be applicable in the United Kingdom. Second, by devolving certain powers to Scotland, Wales, and Northern Ireland. ●

An Act of the UK Parliament is supreme law within the United Kingdom. It cannot be overturned in any court in the UK. An Act of the Scottish Parliament is subordinate legislation meaning that, theoretically, it can be revoked by the Westminster Parliament, and Acts of the Scottish Parliament could be deemed unlawful in court if they conflicted with the statutory competence of the Scottish Parliament as defined by the Scotland Act 1998, section s28(7) states that this section doesn’t not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

‘The "rules" of statutory interpretation are not really rules, but are rather approaches that result in considerable judicial discretion.’ Discuss critically. ●

Statutory interpretation is a process of interpreting statutes by the judges. Acts of Parliament can be difficult to understand despite the very specific word definitions of statues, statutory interpretations give judges a deeper understanding of legislation. The wording of statutes is very specific however each word may have multiple meanings leading to a degree of ambiguity and vagueness. Hence, without statutory interpretation, judges may have trouble deciding their judgments in a case. In developing the meaning of statues, judges have to follow the traditional rules as their guidelines in determining the meaning of the Acts of Parliament. There are three general rules of interpretation that judges use, theres are; the literal rule, the golden rule and the mischief rule.

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The literal rule is applied to statutory interpretation to understand the laws are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. It is considered the least problematic method in interpretation. Due to the fact that a judge would consider what the legislation actually says rather than it meaning. Criticism of this method include the fact that the rule rests on the wrong assumption that words have a fixed meaning. This may lead to error.

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The second rule is known as the golden rule, which allows a judge to depart from a word's normal meaning in order to avoid an absurd result, in contrast to the literal rule. This rule may be used in two ways. It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves. The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious principles of public policy, even where words have only one meaning. Where use of the literal rule would lead to an irrational result that is unlikely to be the legislatures intention, the golden rule dictates that a judge can depart from this meaning.

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The third rule is the mischief rule, it is known as the most flexible rule and was first applied in Heydon’s case. Usually it would only be used if there was still ambiguity surrounding the interpretation once both the literal and golden rule had been used. In applying the mischief rule the court is essentially asking what part of the law did the law not cover, but was meant to be rectified by Parliament in passing the act.

Interprets the purpose and intention of the statue rather than depending on the words before them. ●

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Judges have the discretion to apply any of these rules of statutory interpretation as they deem appropriate. Each of the rules has its imperfections but it provides judges with the ability to interpret legislation in the best way possible to achieve the result as intended by Parliament when it was enacted. These rules of statutory interpretation provide a coherent and proven framework for the courts to follow to achieve the best possible outcome of a case in accordance with legislation....