The Sources of Legislation That Are Binding in Scots Law

1) The sources of legislation that are binding in Scots law are: European Union UK Parliament Scottish Parliament The European Union (EU) is economic and political union which is located in Europe in Brussels. It consists of 785 members representing the 492 million citizens of the 27 Member States of The European Union. Countries which join EU are Austria, Bulgaria, Belgium, Czech Republic, Greece, Hungary, Portugal, Cyprus, Estonia, Luxembourg, Denmark, Finland, Slovakia, France, Italy, United Kingdom, Germany, Ireland, Lithuania, Latvia, Malta, Netherlands, Poland, Spain, Romania, Slovenia and Sweden.

EU is elected every 5 years throughout all the Members States. 5 Institutions serve the European Community: Council of European Union, European Parliament, European Commission, European Court of Justice, European Court of Auditors. Council of the European Union (also known as Council of Ministers) –main decision making and legislative body. Shares legislative power with the Parliament. Coordinates general economic policy. Concludes international agreements. Made up of ministers from member states. Current President is Herman Van Rompuy.

European Parliament – supervises the EC institutions; shares legislative power with the Council; shares budgetary power with the Council and is a directly elected representative body. The President is Martin Schulz, elected in January 2012. European Commission- is executive of the community. Operates as a cabinet government, with 27 members of the Commission – one from each member state. Each commissioner assigned a portfolio of responsibility. Guardian of the Treaties. President is José Manuel Durão Barroso. European Court of Justice- is the highest court in the EU. The Court was established in 1952 and is based in Luxembourg. judge from each member country. Court of first Instance. Court of Appeal. President is Vassilios Skouris since 2003. European Court of Auditors – was established in 1975 in Luxembourg to control and supervise implementation of EU budget. The Parliament of the United Kingdom is the supreme legislative institution for the United Kingdom of Great Britain and Northern Ireland and also for the British Overseas Territories. It is located in Westminster, London. Parliament alone possesses legislative supremacy and thereby ultimate power over all other political bodies in the UK and its territories.

The parliament is bicameral, with an upper house, the House of Lords, and a lower house, the House of Commons. The Queen is the third component of the legislature. Westminster Procedure – proposed legislation takes the form of a bill. Bills pass through 5 stages in each house and then obtains royal assent. The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament is a democratically elected body comprising 129 MSPs. Members are elected for four-year.

As a result, 73 MSPs represent individual geographical constituencies elected by the plurality (“first past the post”) system, with a further 56 returned from eight additional member regions, each electing seven MSPs. The most recent general election to the Parliament was held on 5 May 2011. UK Parliament funds Scottish Parliament. UK Parliament could remove law making power from Scottish Parliament. Scottish Parliament has power over devolved matters such as: health, education, local government, social work, housing, planning, police and prisons, agriculture, fishing, forestry, environment, natural heritage, transport. ) The most authoritative source of law after legislation is judicial precedent, also referred to as “principle of stare decisis” – standing by decisions.

According to this principle the court is bound to give effect to the law laid down by a superior court in an earlier case. The word ‘precedent’ simply means ‘previous case, and a ‘judicial precedent’ is a case previously decided by the courts. To be applicable in a case, the judicial precedent must be in point and stated by a court higher or on the same level as the court in which this case is being heard. It must be possible to extract the atio decidendi of the precedent. The ratio decidendi (reason for a decision) is the point of law on which the previous decision was based. Obiter dicta are remarks of the judge, which are not essential for the disposal of the case. They tend to be hypotheses indicating what his preferred decision would have been if the facts had been slightly different. The doctrine of judicial precedent is less rigid in the criminal courts. At present the most important decisions of the Scottish courts are published in the series known as “Session Cases” Examples are: a) Donaghue v. Stevenson, 1932 S. C. (H.

L. ) 31; b) H. M. Advocate v. Kirkwood, 1939 J. C. 36; c) Smith v. Oliver, 1911 S. C. 103. 3) Lawyers in the 17th and 18th centuries (called ‘institutional writers’) wrote books setting out the principles on which Scots law is based. Many of these principles were based on Roman law. Lawyers in Scotland today still look at what the institutional writers said about the law and apply these principles to modern day situations. Their authority is always less than that of legislation and case-law, and so the court must always apply the legislation or the binding precedent in the event of a conflict.

The most notable institutional writings are: a) Sir Thomas Craig b) Sir George Mackenzie c) Viscount Stair d) Lord Bankton e) Professor John Erskine f) Baron David Hume g) Professor George Joseph Bell. 4) Custom is a less important source of law. The term ‘custom’ means those customs which have not been absorbed into the common law. A custom need to meet certain standards before it is admitted as a source of law: it must have a reasonable history depends on circumstances; it must be definite and certain; it must be fair and reasonable; and it must not be stated within any law.

In reality, although custom is a formal source of law, most of the customs were already absorbed by law. Affirmed by Bryan that customs are rarely be used in courts as a source of law nowadays. Legal custom in Scotland today largely plays a historical role, as it has been gradually eroded by statute and the development of the institutional writers’ authority in the 19th century. Some examples do persist in Scotland, such as the influence of Udal law in Orkney and Shetland. However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.