“Explain the main sources of Scots business law”

1. Identify and describe the sources of legislation that are binding in Scots law and quote at least one example.
In the modern system of Scots law there are three sources of legislation which are binding the Scots law. Those sources can be divided under the validity or power of law.
The first source of legislation of Scots law is Scottish legislation. When Scotland became the part of the United Kingdom it lost the power to make the law without approval of Westminster parliament under special conditions. As a part of the United kingdom Scotland has a right to make the law under only certain legislations. Scottish parliament has power over matters such as: agriculture, forestry and fisheries, education and training, environment, health and social services, housing, law and order (most commonly within Scotland only), local government, sports and arts, tourism and economic development, transport. The other matters are reserved for the Westminster parliament. The law in Scotland is coming from three sources the first source is UE law which have the highest priority, the second source is the UK law (passed by the UK Parliament – Westminster) which has a lower priority than UE law but higher priority than the last third source which is Scottish Legislation passed by Scottish Parliament ( Holyrood).
Example of Scottish legislation:
The Public Records (Scotland) Act 2011 (Commencement No.2) Order 2012
Smoking, Health and Social Care (Scotland) Act 2005
The second source of legislation of Scots law is Westminster Parliament which has a more power to make the law than Scottish parliament also any law made by Scottish parliament can be voided by Westminster parliament under special conditions which means if the Scottish legislation is against or in conflict with the UK law than the Scottish legislation would be voided by the Westminster Parliament. The law in the Westminster parliament is passed by the House of Commons and House of Lords than is given the Royal Assent.
Westminster parliament has a power to make law for other reserved matters which can`t be resolved by Scottish Parliament and these matters are: benefits and social security, immigration, defence, foreign policy, employment, broadcasting, trade and industry, nuclear energy, oil, coal, gas and electricity, consumer rights, data protection, the Constitution.
Example of Westminster (UK) legislation:
Finance Act 2012
Public Bodies Act 2011
The third source of legislation of Scots law is the European Union legislation. Scotland as a part of the UK is a member of the European Union and needs to obey European union legislation and also needs to consider laws inside European Union while making own legislations. European Union Parliament can implement the law as a directive and regulations. The law within the EU is made by the European Commission (proposes new laws and supervises the implementation of the law by the members), The Council of the European Union (proposed new laws by the European commission is considered by The Council ,changes can be suggested and decides whether or to accept the new laws) , European Parliament (is making suggestion about changes and decides and decide whether or not to accept the new law, normally new law within the EU need to accepted by The Council and by the European Parliament), The Court Of Justice (is responsible to ensure that EU law is applied throughout the European Union).
Directives are addressed to member states rather than their citizens under the process of transposition and the directives set the framework but details of implementation are left for the member.
Regulations have general application that means that they are apply to individuals. As soon they are made they form part of the domestic law.

Examples of EU legislation:
The General Product Safety Directive
Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs
Scottish parliament law in most cases is only for Scotland when Westminster parliament law is for whole UK including Scotland especially in matters which are reserved for Westminster parliament and finally the European Union law is for the whole European Union and any law made by the members can’t be against the EU law as it has a highest priority.

2. Explain judicial precedent and it is used in Scots law quoting at least one example. Judicial Precedent refers to the way in which the law is made and amended through the decisions of judges. Judicial precedent is the process whereby judges follow previously decided cases where the facts or point of law are sufficiently similar. It involves the following principles:
Stare Decisis - Stand by the Decision
The doctrine of judicial precedent is based on the principle of stare decisis; this means that similar cases should be treated similar. The general rule is that the decisions of higher courts are binding for the lower courts and appellate courts are usually bound by their own previous decisions. Original Precedent
Where there is no previous judicial decision on a point of law before the court then the decision made in that case on that point of law will be original precedent. The way in which a judge will come to their decision in this situation is to look at cases which are similar to the one in question. These cases are not binding on the court but they are persuasive.
Binding Precedent
A previous decision will be binding on the court if:
• The legal point involved in the case is the same as the one in the previous decision
• The facts of the current case are similar to the previous case (they do not have to be identical)
• The earlier decision was made by a court higher in the hierarchy, or at the same level as the current court (and it is bound by its own previous decisions)

The Binding element of judicial precedent need to contains the four elements, the first one is statement of material, facts (they need to be relevant), the second one is statement of legal principles as a material for the decision (ratio decidendi), the third one is discussion of legal principles raised in argument but it`s not a material for the decision (obiter dicta) and the last fourth element is the decision or verdict made by the judge.
Only the ratio decidendi (reason for the decision) of the earlier case is binding. Anything said obiter dictum (by the way) in the original case is merely persuasive because it was not strictly relevant to the matter in issue and does not have to be followed.
Examples of judicial precedent:
1. Airedale NHS Trust v Bland (1993) – original precedent
2. Donoghue v Stevenson (1932)- The decomposing snail in the bottle of ginger beer case. The House of Lords held that a manufacturer owed a duty of care to the consumer that products are safe.
3. R v Dudley & Stevens (1884) the two shipwrecked defendants killed and ate the cabin boy. They were convicted of murder.

3. Explain Institutional writing and its role in Scots law.
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. No writer on the law since 17th and 18th centuries has been classified as an Institutional Writer and this is due in part to the increasing role of the various Parliaments in passing new laws and the huge growth in the reporting of cases and legislation not only in specialist publications, but also throughout the media. However the courts are often faced with cases dealing with situations on which there is no legislation. In such circumstances lawyers and judges in seeking to determine what the common law is, will still refer to the works of one or more of the Institutional Writers. The main importance of the Institutional Writers was that they contributed to the order of the Scots law. There are several institutional writers but the main ones are Stair, Bell and Erskine.

4. Explain custom and its role in Scots law.
A custom is a practice which has been long and consistently recognised and so has acquired the force of law. Along with judicial precedent, institutional writings and equity these make up what is known collectively as 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 law1 (Marshall, 1995). In reality, although custom is a formal source of law, most of the customs were already absorbed by law1 (Marshall, 1995). Affirmed by Bryan (2009) that customs are rarely be used in courts as a source of law nowadays2.An example would be the legal rights of widows and children when a husband dies without leaving a will.

Glossary
Stare Decisis – [Latin] let the decision stand. The policy of courts to abide by or adhere to principles established by decisions in earlier cases.3
Ratio decidendi - [Latin], the ground or reason of decision.] The legal principle upon which the decision in a specific case is founded. The ratio decidendi is also known as the rationale for a decision.3
Obiter dictum - remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts.3
Dictum - [Latin, A remark.] A statement, comment, or opinion.3