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Week 1 Lecture 1 General Principals of Law Rules, Norms and course of conduct are ways to describe law in legal terms. To be effective law has to be enforced by a legal sovereign, for example the state. In Scotland this sovereign is the Queen in Parliament. The idea behind law is that it can punish you and therefore it involves the threat of force. Law as a system should be able to be coherent so I can be studied. It should make sense so justice can be done. In a legal system there is separation of power. To guarantee the force of law power shouldn’t be concentrated to one entity but spread out. An example for that are the parliament and the police. Parliament can make law, but it can’t enforce it. The police on the other hand can’t make laws but it can enforce it. For other institutions there are other checks and hindrances to control the different bodies. Geographical Setting of Scotts Law In the UK there are 3 separate legal systems: Scotland, England and Northern Ireland The legal systems do interact with the other bodies of the government, for example the Supreme Court and the British Government sometimes work together. Great Britain is the same as the UK. Great Britain is just a geographical expression, there is no legal system in the “Great Britain” The British Isles are England, Wales, Scotland, Northern Ireland, Ireland and the Isle of Man together and are also just a geographical expression. The only correct term for a legal system would be the UK, or better England and Scotland. Note that Scott’s law doesn’t have to be just “Scottish Law” there can be UK or EU law that is binding on Scotland. Definitions: Courts: Apply the law Executive: Day to day usage of the law. Legislation: Statutes or Acts of Parliament. Legislation is passed as law by elected representatives. Legislator: Makes the laws. Precedent: Courts do not only interpret the law, but also make law to a certain degree. The rule of law: Tyrants are not in power, the legal system is. Week 1 Lecture 2
Law Library and Legal Information Skills How to classify sources: How to cite a case in Scots Law: Case Name, Year, Law Report Series, Page number How to cite a case in English Law: Case Name, Year, Chapter number Tipp: Use the website “Cite them right” for help. Week 1 Lecture 3
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Note: A case citation pre 1907 has a single letter (S, D, M, R or F) which indicates the first letter of the editor, this applies only to the session cases. Divisions of the law: Legal traditions and families Common Law o Based on English (Anglo-American) law o First used to describe the law used throughout the UK o Every US state except Louisiana has a similar structure to British Common Law. o The modern day characteristics are that it is not codified and it applied through the doctrine of precedent. o In the early days of Common Law a form of action was required to appear before court. o There is a distinction between law and equity, in English law. Injustice could be done if your claim couldn’t be formed in an action. Because of that another court has been established, the jurisdiction of equity, which provides equitable remedies and an alternative to the regular courts. In 1870 the two courts were combined. o Since the UK joined the EU, more civil law has been introduced into the British Common Law, but some law also went the other way. o Lord Cooper (1892-1955) was very important in setting out Scots law. He was an advocate; he became Solicitor-General and later on Lord Advocate. In 1941 he was the Lord Justice-Clerk and in 1946 Lord President and Lord Justice General. He had the idea that Scots law was pure but it got polluted by English Common Law. He once said: “There is a sense in which it is true to say that Scots law has no history; for the continuity of its growth has been repeatedly interrupted and its story is a record of false starts and rejected experiments.” There was a lot of early influence of English law, then during the independence Scots law developed which in the 13th^ and 14th was heavily influenced by Roman Law.
Week 2 Lecture 2 Earliest period 6th^ to 12th^ century there was Celtic law. The “Scotts were an Irish tribe. MacAlpine united Scotland in 843. Little law remained from that period. The Office of Lord Lyon, the court for disputes among clans, can be traced back the old Scottish King ‘Sennachie’. The Land law cane remained in force until the 20th^ century. Scoto-Norman period from the beginning of the 12th^ century. Feudalism developed a system of writs, ecclesiastical courts and the canon law. Writs= Courts that begin in written form. The Sheriffs were important and the first sheriff courts developed. The Canon law is part of Roman law. The law 13th^ century until 1532 there was the period f arrested development. Scottish common law developed and the regiam majestatem was a first digest. In 1458 gold and football was banned so people would invest more time in archery. There was a growing demand for a better judicial procedure, which resulted in the creation of the College of Justice in 1532, the predecessor of the Court of Session. In the Court of Session there were 7 Judges of the Church and 7 Judges which were non-clerical. There was no split jurisdiction. Equity was infused into Scots Law. 1532 to 1707 there was religious and political upheaval. There were a large number of statutes passed and there was a second reception of Roman law. May Scottish scholars went to the universities of continental Europe and picked up civil law which got implemented into Scots law. There were publications of institutional works which were similar to Justinian’s digest. 1707 there was the unification of the crowns. This was very important for Scotland and its legal system, because the treaty ensured the preservation of the Scottish legal system. The unification also allows English law to come back and replace Roman law. Because of that Scotland adopted the principal of precedent and a lot of commercial laws were passed. Mid 19th^ to mid-20th^ century there was an explosion in statute law and continued English legal influence. This was not always welcome. The judicial life Peers were founded in 1876 Mid-20th^ century to present day there was the resurgence in Scots law scholarship. In 1972 the UK joins the EEC and the new Scottish Parliament was founded in 1999.
Devolution in Scotland Legislative competence is devolved unless otherwise stated. Private law is one of the areas that is devolved to the Scottish Parliament, so theoretically the Scottish Parliament could repeal the marriage act or the law of delict. Domestic sale still belongs to Westminster, but SP can deal with International sales. Scotland could even overrule a statute that has been implemented. But it can’t pass legislation that would change the state of the United Kingdom. In the Scotland Act 1998 Westminster can pass a section 30 order extending the power of the SP over a short period of time. Section 31 introduced that before a bill of the Scottish Parliament the Presiding Officer can declare a bill to be out with the competence of the parliament. The parliament can still pass the bill Before the act is given royal assent the Lord Advocate, Lord Advocate General or Attorney General can refer the bill to the Supreme Court and see whether the bill is ultra vires or not (under s 33). The general public i.e. citizens can also go before court and challenge the act under s29: o Whaley v Lord Advocate [2007] hunting legislation o AXA v Lord Advocate [2011] asbestosis legislation o Salvesen v Riddell [2013] o Cameron v Cottom [2012] dealt in the High Court of Justiciary Week 3 Lecture 3
Sources of Law Legislation trumps case law, but the judges determine what the legislation means. Besides case law and statutes there is also an institutional authority. In court you can quote the constitutional writers and they will be counted as an authority, though not binding, they are persuasive in court. There is a general view that the constitutional writers can’t be overruled, except by inner house judges. In reality outer house may depart from the writers as well, but they most like will give an explanation why. There is no codification of UK law, except for the sales goods act, the partnership and the exchange act and a few others. Scotland has some of its law codified. An important part of law is based on precedent found in case reports: o Until 1802 most cases were reported in Morison’s Dictionary o Then there were the Session Cases: Until 1907 they were labeled with the first letter of the author (Shaw, Dunlop, MacPherson, Rettie, Fraser). Later on they were just marked by the year. o There is also the Scots Law Times Note that amended statutes don’t disappear; you have to look at the next statute to see the amendment (or use Westlaw). Sometimes the parliament consolidates the law to tidy up the statutes. Legislations Enacted law (legislation) Primary Acts of Scottish Parliament UK Statutes EU Law ECHR Other Secondary Statutory Instruments Scottish Statutory Instruments
Statutory drafting The OSPC is an office within the Scottish Government. It has 14 lawyers and is mainly occupied with drafting bills in pain language. When they get the instructions for a bill they have to do the following things: o Consider what the policy is. o Asses the existing law and if it is adequate. o Learn from experience elsewhere, i.e. other countries. o Ask them if a bill is needed? Is there a non-legislative option? Or could it be done by primary or secondary legislation? When the OSPC gets the instructions they have to figure out what the policy is. They also give advice on ‘ultra vires’ issues. Is the bill compatible with the ECHR, EU law, is it part of reserved law, etc. They also have to see if the instructions are based in a sound legal premise. Then they have to decide what is it that they want to say and put it into a legal order. If the policy is in conflict with existing law, the OSPC has to mention that. Good law is clear, effective and enforceable. Why do we legislate? A legal issue may arise, or there is an EU obligation If that is the case an emergency bill may be passed. The parliament can also pass a bill setting the budged for the next year. There may also be a policy proposal, for example for the land reform or the smoking ban. It is the nature of legislation to change the law, to make it enforceable, to be formal and have a look at the wider picture. The drafting should give meaning and effect to the legislation and to form and structure it. It has to be written in detail and one has to be careful in the use of language. Week 4 Lecture 2
Interpretation: Law of fact and language The key issue is that as well as facts may be uncertain. It is not about finding out the truth, it is about making an assessment of the truth based on the evidence given in court. If a party doesn’t argue a point the judge can’t know about it. Law and language go together but they also create problems. For example when technical language is used. There also may be ambiguity in the language; there may be semantic and syntactic ambiguity. A good example is the word ‘fair’, which has lots of different meanings. How do facts interact with law? o There are finding in facts, evidence is collected o There is a burden of proof on the one presenting the fact. In civil cases, the test is on the bases of probability (What is more likely). o Note that the facts have to be relevant to the case. As stated above language can also be ambiguous, for example in Williams v Evans [1982] STC 498 or Hobson v Gledhill [1978] 1 WLR 215. Interpretation The ‘cautious’ solicitor gives advice in advance, for example before the contract is signed. The ‘adventurous’ advocate deals with the problem at the time it occurs, for example when the contract has been signed and your client wants to get out of it. Note that when you interpret legislation always go back to the source, every word in the text should be there for a reason. Also it is all about perspective, it influences the way you read legislation. The vast majority of statutes never go before court for interpretation, but those who do mostly do that for the following reasons: o There are general problems of interpreting o There is ambiguity that what the statute means o The meaning of words change over time These are all difficulties that the drafter should take into account. There is also the question of the intention of Parliament. What did the parliament mean when it passed the bill, can the parliament have an intention. This question has been raised in the case of Pepper v Hart [1993] AC 593. The case rules that the court may, in some cases look at the parliamentary debate and see what the person who brought forward the bill had to say about what it meant. This of course raises some questions because it undermines the general principle that the parliament passes the statutes and the court interprets it. It can cause problem between the balance of power between the executive and the legislative. But it gives the legislation some certainty. Important cases: Williams v Evans [1982] STC 498: In this case the defender claimed that he didn’t have to pay taxes according to the Capital Gains Tax Act 1978. It stated that ‘fixed plant or machinery’
Holiday v Henry: A person attaches rollerblades on his car and argues that because of that the car is no longer ‘on’ a public road. The court held that if the car is occupying the road the car can be fined. Boulton v Pilkington: It is illegal to park in a certain street unless goods are loaded or unloaded. A person parks the car and gets food from an Asian takeaway, when gets fined he argues that he was loading goods. Held that in this context ‘goods’ means a substantial amount and items. Chief Constable of Staffordshire v Lees: A driver panics and drives through the fence of a parking house. When he refuses to give a breath sample, which he has to give after he caused an accident, he argues that he drove through the fence deliberately and therefore it is not an accident. Held that the word gets its ordinary meaning and therefore an accident doesn’t have to be unintentional. Fisher v Bell: As described above. Fitzpatrick v Sterling Housing Association Ledt [1999] 4 All ER705: John lives with his lover Martin, in a time where there was no civil partnership. Martin nurses John until he dies. The Rent Act 1977 states that only a spouse or a family member can inherit the house. The courts looked back the earlier statutes where cohabitants were part of the family. The court held that Martin was part of the family and therefore entitled to stay in the house. Week 5 Lecture 1 More about statutory drafting and interpretation.
One example of statutory interpretation is the Human Rights Act 998, specifically section 3. It states that: o 3(1) So far as it is possible to do so, primary legislation ad subordinate legislation must be read and given effect in a way which is compatible with the convention rights. An example would be Smith v Scott 2007. In the case it was held that prisoners can’t vote. But in the case of Hirst v UK the European court of justice held that according to the ECHR prisoners should be able to vote. Because there was no way in which the legislation could be read to do this the UK had to change its legislation. Another problem in statutory interpretation can be when terms have different meanings, for example an ordinary and a technical meaning. This can be illustrated with the case Jenner v Allen West. In the case it was established that legislation had to be read according to its audience. So a technical word can get its technical meaning if that is the target audience. The important rule is that legislation has to be read purposive, what is the purpose of the legislation? To avoid absurdities a word might be added to the legislation. Judges can also use aids to construct presumptions. Statutes have to be interpreted in such a way that it is applicable with EU law. There is a traditional set of rules, which is not really applied in the real word. It is mainly used in England. The 3 rules are o The Literal rule o The Golden rule o The Mischief rule Statutory interpretation II: Aids to interpretation There is the Interpretation Act 1978 which gives some guidance. In Scotland there is the Scotland Act 1998 and after that the Interpretation and Legislative Reform (Scotland) Act 2010, part 1. These statutes don’t set out rules but they state some general observations. Some examples are: o Gender o Plural includes singular o Impact of subordinate legislation o What to do with repeated legislation o Retrospectivity. It is important when interpreting an act that the act has to be read as a whole. The long and the short title help to figure out what the act is about. A drafter can give examples to make clear what he means with a certain word and set out what is in- and excluded. See Duncan v Jackson (1905) 8 F 323 or Bromley LBC v Greater London Council Important cases
So when can you refer to a statement in the parliamentary discussion? o When the statue is ambiguous, obscured or absurd See Chief Adjudication Officer v Foster o Then the statement form the promoter of the bill may be used. o The statement made by the promoter must be clear, see MT v DT Precedent and Unenacted Law Some of the useful reading may the Stair Memorial Encyclopedia. For precedent to work there has to be a law report, in Scotland there are several law repots o Session Cases o Scots Law Times o Scottish Civil Law Reports o Scottish Criminal Law reports o For the early cases there is Morrison’s Dictionary and also private reports. Between 1838 and 1906 the name of the editors were on the law reports of the Session Cases. The editors were: o Shaw 1838 o Dunlop 1862 o MacPherson 1873 o Rettie 1898 o Fraser 1906 In England there are: o Appeal Cases o King’s/Queen’s Bench o Chancery o Family o Weekly Law Reports o All England Reports Week 5 Lecture 3 What is precedent? Precedent is about taking an argument that has been made in the past to justify an argument in the present. In short: o Similar cases-> similar judgment o Different cases -> different judgment This makes law predictable and fair for everyone because everybody knows what to expect. This makes it easier for lawyers to give advice and it improves legitimacy. But there is the problem that a case may block an area in law, as long as there is no new case or a parliamentary statute. For example in Scotland the law provides you can’t make a security on movable property unless they give the property to the loaner. Businesses are blocked by this decision.
Precedent involves the judge making the law, this can be a problem constitutionally because the judge aren’t elected. Case law can interpret enacted law as well as state unreacted law. Precedent in practice Precedent can very creative The tools of precedent to develop an argument with its confines There are two key ideas o Stare decisis et quieta non movere –previous cases can bind future cases o Ration decidendi –reasons for decision Cases should be read in the context of the other cases In general higher courts bind lower courts, but only if the case applies. The courts from one jurisdiction do not bind a court from a different jurisdiction, although they can be persuasive. Devolution cases some special issues: o The Supreme Court of the United Kingdom is the highest instance for civil cases, it includes Scottish cases. There are Scottish members in the UKSC o But it doesn’t rule in criminal cases. The UKSC is: o A civil court o Probably bound by its previous decisions o Since the 1966 practice statements the HL can overturn previous decisions If an advocates wants to overturn a decisions by the UKSC/HL he has to notify the court in advance, so the court can prepare and have more judges to overturn the decision. The Court of Session It has scholastic nature It is divided into OH and IH It has large benches Previously it had 13 to 15 judges now there are around 30. There is a first and a second division A full court can be 5,7,9 judges The inner house binds the outer house and itself The outer House doesn’t bind itself, but it has to give an explanation if it departs form a previous decision A Sheriff Principal binds only the sheriffs in his sheriffdom, a sheriff is not bound by his own decision. Week 6 Lecture 1 National and international Law
Public international law: Is a collection of rules used by states to interact with each other. Private international law: Is a collection of rules to be used by people when negotiating internationally with other people. Substantive law: Law that is defined by rules. In other words the principles and rules of law Adjectival law: The law should be enforced. It will set out the jurisdiction, the powers of courts, what evidence can be used in court and the decrees and the enforcement of decrees. Week 6 Lecture 2 Unenacted law The main question that has to be raised when reading a case is, what is the ratio? Sometimes the orbiter dicta can become very important after a certain period of time. For example it can be helpful to look a dissenting judge or some endowment laid down a good idea. The ratio of the case is only one part. The second question is where is, where in the court hierarchy is the case? Sometimes you may want to look at cases from other jurisdictions to see how the problem has been solved there. But that doesn’t always work, property law for example is in Scotland very different from England. There are two more kinds of unenacted law, customary practice and the institutional writers. Customary practice can become law, but there isn’t much of it left that hasn’t been put into a statute. The institutional writers wrote in the early modern ear until the 19th^ century. After some time part of their work got institutional status and therefore got the force of law. Their work has been written a long time ago is not very applicable today. So it is rare that an institutional writer is your main source in a case. Sources of law The law is divided in public and private law. Public law is subdivided in: o Constitutional law Constitutional conventions, governmental powers, in the UK there is no actual constitution (it is largely unwritten). o Administrative law, which deals with the day-to-day work of the government. Public administration Judicial review of administrative action
o Taxation o Criminal law o Private law is subdivided into: o Property law o Obligations Voluntary: Contracts Involuntary: Delict, Unjustified Enrichment and Negotium Gestio. o Persons Marriage, civil partnership, divorce, etc. In criminal law the state instigates the action, not a person. Criminal law has a different court structure. Also the balance of proof has to be demonstrated beyond reasonable doubt, this is a very high standard of proof. It is possible to privately prosecute crime. But it is very rare that it is granted, in the 20th^ century this happened only twice. Week 6 Lecture 3 Substantive National Law Scotland act 1998 s126 in HO In modern definition, persons things and actions still feature heavily. One of the devolved issues Property and obligations Property – rights in things – in rem Obligations – rights between people – in personam Fundamental ideas o Idea of personality – all law is directed at persons Natural persons – human beings Not full legal person until certain age (16 in scot) Legal or juristic persons o Good faith People who contract are assumed to do so in good faith Also in family law and property Typically law will penalise bad faith o Personal bar Legal doctrine which prevents people from acting in a way different to what they originally said they would. Prevent inconsistent conduct that would harm others English similar estoppel o Rights and duties If you have a right to do something can force someone to let you do it Liberty of freedom – not constrained but not right to, no one under duty to allow o Juridical act An act which law takes account of and gives effect to Contract, donation, marriage
