Scots Law in the UK and International Context
The United Kingdom comprises three legal jurisdictions: England & Wales, Northern Ireland and Scotland. While much of the body of law made by the UK Parliament in Westminster applies to all three legal jurisdictions, there are separate court systems in each jurisdiction and local laws made by national legislative bodies in Scotland, Wales and Northern Ireland. In some areas, such as commercial law, the laws of the three jurisdictions have converged over time but in others (such as property and criminal law) they have retained their distinct characteristics. While England is a common law system, Scotland has a mixed legal system which combines elements of the civil and common law traditions. The civilian practice of codification has not been followed in Scotland but the influence of civilian principles is evident in many areas of the law and often forms part of judicial reasoning in case-law. However, in line with English law, Scots law generally follows the doctrine of precedent with the result that judges are bound by decisions of superior courts on the same issue. The role of “equity” in English law does not have a direct parallel in Scotland but Scottish courts do nevertheless refer to equitable principles when resolving cases where the law does not provide a clear solution.
In May 1707 the separate parliaments of Scotland and England became incorporated in the new Parliament of Great Britain which became the sole legislative authority of the new British state. In 1801, a further parliamentary union took place with Ireland leading to the creation of the United Kingdom Parliament. The latter union lasted until 1922, when the Irish Free State was founded and later became the Republic of Ireland, leaving Northern Ireland as part of the United Kingdom along with Scotland and England and Wales. The main consequence for Scots law of the 1707 Union was the loss of the capacity to legislate independently in Scotland. While Scotland sent and continues to send members of parliament to Westminster, relatively few Acts affected the development of Scots law, particularly in the century and a half following the Union of 1707. This left the Court of Session, the central civil court, considerable scope to develop the law. However, this was subject to the House of Lords which, from shortly after 1707, acted as an appellate court of last resort from all parts of Britain. Civil cases from Scotland were appealed to the House of Lords which formed a Judicial Committee to hear them. From 1876 the committee contained Scottish judges, as does its successor, the UK Supreme Court, which was established in 2009. This appellate activity is one reason why some important areas of Scots law have, since 1707, undergone considerable Anglicisation. This began in the eighteenth century as Scottish jurists and judges were influenced by English legal sources but, through both statutory development and the influence of the House of Lords, Scots law and English law in some important areas are now the same. Legislation applicable throughout the United Kingdom has created uniformity in areas such as taxation and important areas of commercial law, despite separate jurisdictions and systems of courts having been maintained. As a result of the jurisprudence of the courts, areas of common law such as the law of contract and delict (tort) are now very similar in England and Scotland. In the Scotland Act 1998 the United Kingdom Parliament, following a referendum held in Scotland in 1997, created a new Scottish Parliament with devolved powers. A Scottish Executive was also established (now known officially as the Scottish Government). The Parliament opened in 1999 and it has the power to legislate in all areas except those which were reserved to Westminster under the 1998 Act. Such ‘reserved matters’ include foreign affairs, defence, VAT and most areas of taxation, financial services and markets, consumer rights, data protection, social security, immigration, energy policy and the constitution. The Scottish Parliament sits in Edinburgh. Acts of the Scottish Parliament (ASPs) are distinct from the Acts of the United Kingdom Parliament. In particular, ASPs may be held to be invalid by the courts if they are incompatible with human rights or infringe the powers set out under the Scotland Act 1998.
International and EU Law
The United Kingdom (UK) is a single multi-national state made up of England, Scotland, Wales and Northern Ireland. Whereas the UK is a sovereign state under public international law, Scotland – like England, Wales and Northern Ireland – is not. Thus, it is the UK – rather than Scotland – that becomes a party to international treaties and that is a member of international organizations like the United Nations, the EU or NATO. With regard to the implementation of international treaties into domestic law, it is important to note that the UK is a so-called “dualist state”, meaning that a treaty ratified by the UK Government does not alter UK domestic law unless and until it is incorporated into national law by domestic legislation. For example, UK legislation makes express provision for the incorporation of the Convention against Torture as well as EU law. Until such implementing legislation is enacted, national courts have no power to enforce the rights and obligations laid out in an international treaty. The requirement of incorporating legislation raises the question of which Parliament has the competence to adopt such legislation: the Scottish Parliament or the UK Parliament. Although devolution within the UK means that the Scottish Parliament and Scottish Government are empowered to take decisions on a range of domestic policy areas, foreign affairs and matters that affect international relations have been reserved for the UK Parliament in the Scotland Act 1998. Thus, international treaties are typically incorporated by UK law rather than separate Scottish law. A notable exception, however, is the International Criminal Court (Scotland) Act 2001 which was adopted because of Scotland’s different criminal law system and which must be considered jointly with the UK International Criminal Court Act 2001. The Scottish Government remains responsible for ensuring that it complies with the UK’s international obligations in all areas devolved to it.
While there has been a general convergence in commercial law as between the three jurisdictions in the UK, there remain material differences in some areas. In particular, since contract law and property law in Scotland remain distinct, it follows that the related aspects of commercial law also remain distinct in the absence of harmonisation. In harmonised areas of law (e.g. sale of goods, where the law in the UK has been harmonised by statute), it is common for courts in each jurisdiction to apply case-law from the other jurisdictions.
Company Law. Company Law, which is statutory in its origin, is the same in all parts of the UK. Partnership Law has also been harmonised across the UK but there do remain some material differences (e.g. a partnership is a legal person only in Scotland).
Financial Law. The private law of finance (e.g. contracts, funds, security interests) remains distinct as a result of the separate systems of contract and property law in Scotland. However, commercial practice means that similar techniques are often adopted in Scotland and England especially in the context of international transactions. The public law of finance (regulation) is uniform across the UK and much of it is now derived from EU law.
Competition Law. This area of law is harmonised across the UK and is nowadays heavily influenced by EU law.
Tax Law. Revenue and customs law is uniform across the UK.
Property law is the area of Scots law where the influence of Roman law is the strongest. A strong emphasis is placed on the division between real rights (rights in items of property which are enforceable against the whole world) and personal rights (rights such as those under contract which are enforceable against particular persons). In contrast to common law systems, there is no distinction between Law and Equity and therefore no possibility of an equitable interest which is distinct from legal title. Historically, a greater emphasis has been placed on publicity in the transfer and constitution of property rights in Scotland. There is one important exception to this in the form of the Sale of Goods Act which applies across the UK and allows transfer from seller to buyer without delivery. Rights in security. Both of these factors have implications for the law of rights in security: there is no general recognition of equitable charges as a means of granting rights in security. a. Moveable property. Companies and certain other jurisitic persons can grant floating charges as a result of statutory intervention in the 20th century. Beyond the floating charge, the only right in security which can be granted over goods is pledge, which requires possession on the part of the creditor. There is no proper right in security for incorporeal property. The only way to use it as collateral (other than through the floating charge) is to assign the relevant right in security. This is an outright transfer combined with an obligation to retransfer when the debt is paid. Assignation in Scots law requires intimation to the debtor of the assigned debts. b. Land (known in Scotland as heritable property). Nearly all dealings with land are effected by registration on the Land Register and, until that happens, the grantee is vulnerable to the granter’s insolvency. The only right in security which can be granted over heritable property (besides the floating charge) is the standard security. It is created and transferred by registration of a deed in the Land Register. Trusts. Although Scots law does not recognise a division between Law and Equity, it does recognise the trust. As in common law systems, one of the most important consequences of the trust is that the trust assets are not vulnerable to the the trustee’s personal creditors, particularly where the trustee is insolvent. In common law systems, this result is explained by reference to the beneficiaries’ equitable property interest in the trust property. In Scotland, beneficiaries have a mere personal right but trust assets are considered to be in a separate patrimony from the trustee’s personal patrimony. This separation of patrimonies is said to explain the protection of the trust assets. Succession. Scots succession law reflects a mix of common law, civilian and native influences. Very few rules apply across the UK apart from those which regulate inheritance tax. Historically, the division between heritable property (land) and moveable property was very important. In contrast to English law, forced heirship rules entitle relatives to a fixed portion of the moveable property rather than giving discretion to the courts. The executor plays a central role in the administration of the deceased’s estate. Property does not pass directly to those entitled to it under the will or rules on intestate succession. Instead, it passes to the executor, who is effectively a trustee for those who are entitled to the property and is obliged to pass the property on to them after the deceased’s debts have been paid.
Family law in Scotland is based largely on legislation which it does not share with any other UK jurisdiction. Accordingly, although it is possible to marry, become a parent and divorce in any part of the UK, the detailed rules governing those legal actions in Scotland will differ from the rules elsewhere. In some respects, as with the law on formation of marriage, the differences between the jurisdictions are fairly minor. However, some significant variations remain.
Financial arrangements on divorce. In Scotland, division of assets on divorce is based on the “clean break” principle, where each spouse walks away from the relationship with a fair share of the matrimonial property. The aim is to avoid any continuing financial relationship between the parties, unlike elsewhere in the UK, where needs-based maintenance (alimony) payments are often ordered by the court.
Cohabitation. Couples who live together without marrying in Scotland are subject to a legislative regime governing the property consequences of their relationships under the Family Law (Scotland) Act 2006. Such legislation does not exist elsewhere in the UK.
Children’s hearings. Scotland’s unique Children’s Hearings system deals with all children who are in trouble or need help, including those who have committed a crime. The system is focused on welfare, with the child and relevant people in her life holding a round table discussion to decide what help or support the child requires. There is no equivalent elsewhere in the UK, where children would be dealt with through the courts or by the local authority.
In contrast to almost every other jurisdiction worldwide, the United Kingdom has no criminal code. Many serious criminal offences (such as murder) are not actually defined in statute, but are a matter of “common law”, where the definitions have been developed by the courts over the years. The absence of a code means that the definitions of criminal offences are found spread across the common law and a wide variety of statutory materials. The structure of criminal law is largely identical across the UK. A Scottish criminal lawyer would have little difficulty in understanding English criminal law (and vice versa) but would be faced with a different set of rules from those they are familiar with in their home jurisdiction. Most serious criminal offences have different definitions – and sometimes different names – in Scotland and in the rest of the UK, although they cover a broadly similar range of conduct. However, where criminal law is used as a regulatory tool (for example, where competition law creates criminal offences), this is often done in UK-wide statutes. Such statutes may create identical offences applying across the whole of the UK. University of Glasgow School of Law 2013