SCOTTISH LAW BEFORE AND AFTER THE REFERENDUM
DR ANDREW STEVEN, UNIVERSITY OF EDINBURGH AND SCOTTISH LAW COMMISSION
AINTRODUCTION
Scotland forms the northern part of the island of Great Britain, and is one of the countries in the United Kingdom. Its capital is Edinburgh.
The population of Scotland is 5.3 million, about four times bigger than Estonia.
Like a small number of other jurisdictions (eg Louisiana, Quebec, Sri Lanka and South Africa),Scotland is a so-called mixed legal system.
It is a mix of (Roman) civil law and (English) common law.
Why the Roman influence?
“What does surprise me is that Scotland, now a highly developed economy, should have a land law which is still based on the judicial development, albeit sophisticated, of the laws of Rome and the mediaeval Feudal system.”
Lord Hobhouse of Woodborough in Burnett’s Tr v Grainger [2004] UKHL 8 at para 53
Why the English influence?
“If such be the law of England, on what ground can it be argued not to be the law of Scotland?”
Lord Cranworth LC in Bartonshill Coal Co v Reid (1858) 3 Macq 266 at 285.
Scotland like England has no civil code. Our sources of law are statute and common law (case law, juristic writings and custom). For legislation see:
BCOURTS
Scotland has its own court system, independent from England and Wales.
There are separate higher courts for criminal and civil law. At local level, the sheriff court carries out both civil and criminal business.
The High Court is the higher criminal court. Murder and rape cases must be heard there before a judge and 15 person jury.
The Court of Session is the higher civil court. First instance cases are heard in the “Outer House” by one judge. Appeal cases are heard in the “Inner House” normally by three judges.
But there is a further right of appeal to the UK Supreme Court in London.
There is no career judiciary in the UK. Judges are appointed from the ranks of senior advocates/barristers (known as QCs) and are typically 50+ in age.
Of the twelve Supreme Court judges, only one (Lady Hale) is a lady.
Of the thirty four Court of Session/High Court judges, only nine are ladies.
CTHE SCOTTISH PARLIAMENTS OLD AND NEW
Scotland prior to the union with England had her own Parliament. Some of the legislation of that Parliament, notably the Leases Act 1449 (which established that leases of land are real rights) and the Registration Act 1617 (which established the original land register, the Register of Sasines) is still in force.
The Treaty of Union uniting the Scots and English parliaments was signed in 1706, and the parliaments were formally united by Acts of Union in 1707. The Treaty of Union created a single legislature for Great Britain, but expressly preserved a separate Scottish legal system.
I. "That the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, and forever after, be united into one Kingdom by the name of Great Britain..."
XVIII. "The laws which concern public right policy and civil government may be made the same throughout the whole United Kingdom, but that no alteration be made in laws which concern private right, except for evident utility of the subjects within Scotland."
XIX "That the Court of Session, or College of Justice, do after the Union and notwithstanding thereof, remain in all time coming within Scotland as is now constituted by the laws of that Kingdom, and with the same authority and privileges as before the Union ... And that no causes in Scotland be cognoscible by the Courts of Chancery, Queen's Bench, Common Pleas, or any other court in Westminster Hall..."
The Scotland Act 1998 established the new devolved Scottish Parliament, which began sitting in 1999. It has 129 members known as Members of the Scottish Parliament (MSPs).
Under the 1998 Act areas of law are within the Scottish Parliament’s legislative competence, unless expressly reserved to Westminster.
Examples of devolved areas: contract law; delict (tort); family law; property law; rights in security law; trusts; succession law
Examples of reserved areas: foreign and defence policy; financial services; consumer protection; telecommunications; business associations; corporate insolvency; intellectual property; and some taxation.
DTHE REFERENDUM
In the 2007 Scottish Parliament election (the third following devolution in 1999) the Scottish National Party (SNP) won the most seats of all the parties (47 out of 129) and formed a minority government. Its leader, Alex Salmond, became First Minister of Scotland.
In the 2011 election the SNP won 69 seats and formed a majority government. In its manifesto it pledged a referendum on Scottish independence.
The terms of the referendum were agreed with the Westminster Government of David Cameron in October 2012.
The question was:
“Should Scotland be an independent country?”
16 and 17 year olds were allowed to vote. The normal voting age is 18.
The referendum was held on 18 September 2014.
Two days before it the Westminster party leaders proposed further devolution in the event of a “no” vote.
Yes 44.7%. No 55.3%.
On the morning of 19 September at 7 am David Cameron announced the setting up of the Smith Commission to look at further devolved powers. It reported on 27 November and proposed further devolution of various areas principally aspects of taxation and welfare.
Also on 19 September Alex Salmond announced his resignation with effect from November and was replaced by Nicola Sturgeon, a law graduate and Scotland’s first female First Minister.
ESCOTTISH LAW COMMISSION
The Scottish Law Commission and the Law Commission (for England and Wales) were established by the Law Commissions Act 1965.
1965 Act s 3(1):
“It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law . . .”
SLC carries out projects both on devolved and reserved areas, the latter often being joint projects with the Law Commission.
Examples of current and recent projects
(1)Prescription and title to moveable property
(2)Moveable transactions
(3)Contract law in the light of the Draft Common Frame of Reference
(4)Trusts
(5)Compulsory purchase
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