Sources of Scots Law

Sources of Scots Law

1. Custom

   • Must be certain and notoious
   • Wilkie V Scottish Aviation Ltd 1956

2. Equity

   • Fairness or resonableness
   • Exercise of the equitable power (NOBLE OFFICIUM) of the Court of Session or High Court of Justiciary. This is exercied as a last resort to declare actions unlawful or to grant a remedy where otherwise no remedy would be available.
     • Khaliq V HM Advocate

3. Legislation

   • UK Constitution
     • The UK constitution cannot be found in a single document
     • Parliamentary sovereignty
       • The Sovereign Monarch - Queen Elizabeth II
         • Monarch's law making power was given to parliament by the Act of Settlement in 1700.
         • The Queen is only a figurehead
         • Some Royal Preogatives remain.
           • Appointment of Ministers (selected by the Prime Minister)
           • Dissolution of Parliament (on request of the Prime Minister)
           • Power of Pardon (the Royal Pardon)
         • House of Commons
           • Consists of elected members
           • Elected every 5 years
           • Role is to scrutinise legislation
           • Question the action of government ministers
           • Debate isues
           • Check the financial probity of the Government
         • House of Lords
           • Unelected members
           • Recently reformed
           • Mixture of elected and appointed
           • Reflect balance of political parties
           • Formaly had a judicial role now given to the Supreme Court
     • Legislation of UK Parliament most authoritative source of law in the UK
   • The UK is bound by EU legislation which is then passed in to law by the UK parliament
   • The UK parliament is the supreme law making body in the UK.
   • The Scotland Act 1998 devolved most matters relating to Scotland to the Scottish Parliament. UK parliament retains the powers to legislate on matters contained in the "reserved matters2 list - Schedule 5 of the 1998 Act.

4. Authoritative Writings / Industrial Writers

   • Mainly 17th and 18 Century writers
   • Statement of an idustrial writer has same force as a decision of the Inner House of the Court of Session
   • List is now closed

5. Judicial Precedent / Case Law

   • Scotland has a separate Court System from England, Wales and NI
   • English and Scots Law relies heavily on a system of judicial precedent
   • Judge made law taken from decisions in individual cases
     • The precedent must be on the same point of law
     • It must have been RATIO DECIDENDI and not OBITER DICTA
     • It must have been made by a higher court.
   • A court is bound to follow the principles of law set down in previous cases by a higher court.