Sarah Jane Mc Cormack Sarah Jane Mc Cormack

BUsiness law: lo1
Nicola Crawford 0700206
BUsiness law: lo1
Nicola Crawford 0700206

Contents Sources of Legislation 2 Judicial Precedent 2 Institutional Writing 3 Custom 3

Sources of Legislation

Legislation is the process or enacting of laws. In Scots Law there are a few legislations that are legally binding, in particular the Scottish Parliament, UK Parliament and the European Union. The UK Parliament passed the Scotland Act 1998 which in turn created the Scottish Parliament. The Scottish Parliament consists of Acts of the Scottish Parliament, Scottish Statutory Instruments and Scottish Councils can make Bye-Laws. The Scots Parliament have been given devolved powers (also known as legislative competence) by the UK Parliament meaning that they have control of certain areas, these being the legal system (so long as it does not contradict the legal system of the UK Parliament and European Union), agriculture, education, environment, health, arts, housing, local government, rural affairs, sport, tourism, local transport and some limited tax powers.
The UK Parliament is another source of legislation that is binding in Scots Law. The UK Parliament consists of Acts of the UK Parliament and Statutory Instruments. The UK Parliament has reserved powers meaning that the Scots Parliament cannot pass legislation in certain areas such as foreign policy, defence and national security, employment legislation, finance, immigration, energy, trade and industry, social security and genetics. The UK Parliament has overall power of the UKs affairs and the Scots Parliament is subordinate to the UK Parliament as the powers of the Scots Parliament were given to them by the UK Parliament. An example of an act passed by the UK Parliament which effects Scotland is the Equality Act 2010 or Data Protection Act 1998.
The final source of legislation that is binding in Scots Law is the European Union Law. The EU consists of Regulations and Directives. Regulations being that these laws put in place by the EU must be followed immediately by any member of the EU. Directives are laws put in place by the EU that must be followed by members of the EU by a certain time period. The EU laws are binding on all members of the EU which means EU Law over rules UK and Scots Law and any EU legislation that is put into place must become law within the UK no matter what their opinion may be. The UK and Scots Parliaments cannot put into effect a law that contradicts the EU Laws but must follow EU law even if that contradicts Scots Law. The power of EU Laws was flagged up during the R v Secretary of State, ex parted Factortame and others (No2) 1991. This case allowed to recognise the relationship between UK Parliament and European Community Law and that the UK could not contradict EU Law and that EU Law must be followed.

Judicial Precedent

Judicial Precedent (which is also known as common law) is the second most important source of law after statutes. It means that “once a point of law has been decided in a particular case that law must be applied to all future cases containing the same material facts.”(http://www.e-lawresources.co.uk/Judicial-precedent.php) those particular cases being held in the higher courts. This is known as Stare Decisis in law terms. Some areas that are based on Judicial Precedent in Scots Law is contract law, criminal law and Delict. In Scotland the courts consist of lower and higher courts as shown in the following example (http://www.scotland-judiciary.org.uk/16/0/Court-Structure) So if the Sheriff Court came across a case, they would have to follow the decisions that were made by the higher courts on a similar case which must be “in point” and the previous decision “binding”. “Binding” is also known as Ratio Decidendi which is the point in case which determines the judgement or principle which the case establishes. Another term used in Judicial Precedent is Obiter Dicta which are the remarks of the judge which are not necessarily reading a decision but can be comments, thoughts or illustrations.
One of the more well-known examples of Judicial Precedent is
Donoghue v Stevenson 1932 AC 562
In any similar cases that appeared in the courts after this they would have to follow the same proceedings.
Institutional Writing

In the absence of statute or Judicial Precedent, Institutional Writers can be referred to in court. The first institutional writers were James Darlymple and 1st Viscount Stair. Stair managed to achieve a logical presentation of the principles of Scots Law in writing book, where the principles are mainly based on Roman law and were mainly used in the 16th, 17th and 18th centuries. Nowadays legislation and Judicial Precedent generally covers all aspects of law, although it is still used by many Scots lawyers today.
Custom
Custom was mainly used up until the 16th and 17th centuries before institutional writers started write legal texts books. Custom is where a practice has been in place for so long that people believed it to be the law. Custom nowadays is covered by legislation and Judicial Precedent and is highly unlikely to be referred to today.