How does the Scottish legal system work?

Nov 28, 2022

Written By Panashe Nyadundu

The Scottish legal system is best described as a hybrid system, due to its use of both civil law and common law. Scotland enjoys a distinct legal system from the union, giving the legislature, judiciary and government autonomy over law and policy decision-making. Here, we outline how the different elements of the Scottish system operate.

Sources of law

In Scotland, three main sources of law create a sound foundation of binding legal rules that shape the Scottish legal system. Together, legislation, legal precedent (case law) and institutional writers (writers who first brought the principles of Scots law into legal texts) are used as the main sources of law.

The fourth source of law, known as customs, is recognised under Scots Law, however, it is not as frequently relied upon as the first three sources:

Legislation

This is the law which has been enacted by either UK or Scottish Parliament. When laws are made by the UK Parliament this is known as ‘reserved powers’ or ‘excepted powers’. Typically, these are external matters which concern the union, and as such are decided by Westminster. For example, defence, immigration, and foreign relations.

Laws passed by the Scottish parliament are known as ‘devolved powers’, which tend to only affect the singular jurisdiction. Examples include policing and justice, and education.

Legal precedent (case law)

This source of law uses judicial decision making from previous higher court cases to create new rulings of law that will be binding over lower courts. These decisions form the basis of common law.

Normally, the need for legal precedent is called upon when there is a dispute over the meaning in the legislation or a lack of it. The purpose of precedent is to provide certainty within the law and to allow the natural evolution of common law to stay up to date with new social challenges within cases.

The judiciary must interpret and search for the underlying area of law which is being applied and use precedent from similar cases to aid their decision.

When applied, lower and equivalent standing courts are usually bound by the decisions made by higher courts or those on the same standing. Superior courts have the authority to override legal precedent of lower courts, and even their own.

Institutional Writers

This doctrine holds that specific legal academic writers throughout the 17th-19th centuries writings are seen as authoritative and binding as a source of law. Many of the foundational principles of Scot’s Law can be studied through these writer’s books.

Custom

Scots law recognises long held customary practices as law. However, in modern history custom law is not as important as it once was.

Legal Institutions

Government

The Government of Scotland, which is led by the First Minister, is responsible for enacting and passing laws by the Scottish Parliament. Situated in Edinburgh, the capital city, the main role of the Government is to exercise executive authority over the Scottish legal system.

Legislature

The Scottish Parliament is made up of 129 elected members of Scottish Parliament (MSPs). It is the responsibility of the legislature within the legal system to propose, enact and scrutinise legislation and policies of the Scottish Government. This can occur through parliamentary debates, questions, and several categorised committees.

As a separate parliament from Westminster, it is interested in devolved matters which solely relate to Scotland. Examples of devolved matters are: consumer advocacy and advice, economic development, education and training, fire services, and health and social services.

The Courts

The court system in Scotland operates through both the civil and criminal law proceedings.

Structure of the Courts

Criminal Court System

Like England, Scotland has a four-tier court system. The function of the criminal court is to hear cases of criminal conflict between a person(s) and the government.

The Justice of the Peace Court hears the most minor summary offences such as speeding. Above it sits the Sheriff Court, which hears both solemn and more serious summary cases. In the case of an appeal, the Sheriff Court Appeal will rule over the conclusion of the case.

Lastly, the High Court of Judiciary hears the most solemn cases, and can impose a life sentence and the highest fines throughout Scotland.

Civil Court System

In Scotland, the role of the civil courts is to resolve issues between private parties. This may be between two or more individuals, or individuals and an organisation.

Like England, and the Scottish criminal courts, a hierarchy is also applied for civil law proceedings. The sheriff court is where first instance cases will be heard. If there is an appeal, this is then taken to the Sheriff Appeal Court. The Court of Session in Edinburgh is the highest court and deals with more serious and complex civil matters.

Individuals, organisations and companies may not always wish to proceed with court hearings and often opt for tribunals, alternative dispute resolution or counselling as alternatives.

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