public law Real seminar 1

1. How many legal systems can be found within the UK?

Five layers of law: UK-wide law; English law, sometimes shared with Wales; Scots law; Northern Irish law; and Wales-only law. These are groups of laws, not five separate court systems.

2. How do these legal systems relate to each other?

The UK is the wider system. Scotland, England, Northern Ireland and Wales have their own laws within it. Scottish law and UK-wide law both apply in Scotland. English law is not above Scottish law.

3. Why is English law relevant in Scotland?

English court decisions can help Scottish judges, but usually do not have to be followed: they are persuasive. UK-wide law can apply in Scotland. UK Supreme Court decisions on Scottish appeals bind lower Scottish courts. Decisions on English appeals are generally persuasive, but are usually followed where the same law applies in both countries.

4. What did the Union of 1707 change for Scots civil and criminal law?

The Scottish and English Parliaments joined to form the Parliament of Great Britain. Scotland kept its separate legal system. Civil cases could be appealed to the House of Lords; the UK Supreme Court now does that job. Ordinary Scottish criminal appeals stay within Scotland’s courts.

5. How do common-law and civil-law systems differ, and where does Scotland fit?

Common law: judges develop rules through precedent, and law comes from different sources rather than one overall code. Civil law: law is organised into codes, with judges mainly interpreting them. Scotland is mixed: it uses precedent and is uncodified, but keeps Roman-law influences, including in property law.

6. What does a legislature do, and which legislatures make laws for Scotland?

A legislature makes laws, changes them and removes them. This is mainly primary legislation. The UK Parliament makes Acts of Parliament. The Scottish Parliament makes Acts of the Scottish Parliament within its legal powers. Both make laws for Scotland.

7. What does government do, and which governments have responsibilities in Scotland?

Government carries out laws, runs public services and makes secondary legislation when an Act gives it permission. The UK Government handles reserved matters, such as defence and immigration. The Scottish Government handles devolved matters, such as healthcare and education.

8. What does the judiciary do?

Judges interpret laws, decide disputes fairly, make court orders and develop legal rules through precedent. Scottish courts and the UK Supreme Court have different roles depending on the type of case.

9. What are the two major sources of law, and how are they made?

Legislation and judicial precedent. Parliament makes primary legislation. Ministers or other authorised bodies make secondary legislation using powers from an Act. Judges create precedent through the legal reasons for their decisions.

10. What is the difference between primary and secondary legislation?

Primary legislation is made directly by Parliament. Secondary legislation is made by a minister or another body using powers given by a parent Act. Primary legislation takes priority. Rules beyond the powers given by the Act are ultra vires, meaning beyond legal power, and invalid.

11. What are the minor sources of Scots law?

Institutional writers and custom. Institutional writers are early legal writers whose works became legal authority, such as Stair. Custom is a long-standing practice recognised as law. Both are used less often today but can still matter.