#16453 - Sources Of Law In The Uk - Scottish Legal System

1. Sources of Law in the UK

There are different ways to categorise sources of law

1. Enacted law: legislation in the form of acts and statutes

Unenacted law: case law and institutional writings

2. Primary sources

1. Legislation:

• EU legislation

• Acts of UK parliament (statutes)

• Acts of Scottish Parliament

• Statutory Instruments

2. Case law

3. Institutional writings

Secondary sources

1. Legal literature

2. Custom

• Hierarchy of sources:

1. EU Law

2. UK Law

3. Acts of the Scottish Parliament

4. Secondary Legislation (statutory instruments)

• Later legislation inconsistent with earlier legislation takes priority

• Laws made by acts of parliament can reverse decisions of acts of courts (legislation has authority over case law)

• legislation is interpreted by the courts so courts can have their own interpretation of what this legislation is, but parliament can disagree with this interpretation

• But legislation that is passed on UK level can apply to all legal systems in the UK (Example: tax legislation-revenue law)

• But interpretation of this legislation could vary within legal systems

• Codification: setting out common law in legislative form
  

1. Sources of Law: Enacted Law

Legislation

Primary Legislation:

1. Acts of the Parliament of Scotland: acts of the old parliament

2. UK Statutes

3. Acts of the Scottish Parliament (after 1999)

4. European Union Law: treaties, regulations, directives,

5. European Convention on Human Rights

• Created by parliament (Scottish or UK)

• Restrictions:

  • EU Law

  • Human Rights Act 1998

• Scotland Act 1998 (legislative competence)

• Structure:

• Short title

• Long title: informs what the legislation is about in detail

• Chapter number: indicate the chronological order of legislation passed throughout the calendar year

• Enacting formula (Parliament Acts specialties)

• Marginal notes: written by the drafter, not passed by parliament

• Sections, Sub-sections, Paragraphs, sub-paragraphs

• Interpretation sections: what words mean etc.

• Geographical extent: UK, mentions if Scotland is included

• Schedules: appendix at the end of the main body of the act, contains a series of rules that provide more detail to the substantive rules in the act

• Repeals and amendments

• Consolidation of legislation: parliament modifies a statute by setting out rules and provisions in new legislation, and the old version is disregarded

• Commencement: If there is a (c) after a statute, then it is in in force

• sometimes there is a clause in the statute as to when it is to come into force, but if there isn’t then it should come into force upon royal assent

• Desuetude: when a statute becomes obsolete after the passage of time (applies to old acts of the Scottish parliament)

• Travaux preparatoires: working papers

1. Explanatory notes: notes which explain what legislation is meant to do

2. Policy memorandum: does not look at individual sections, but set out what legislation is attempting to achieve; the “why”

both prepared by the promotor or legislation, reviewed by the drafter

• Repealing legislation:

• If legislation arising to a right, but then it is repealed, then those acting upon that right are within their legal rights to maintain

• The repeal of the repeal does not revive the previous legislation

• How Acts of Parliament/ Statutes are created:

1. Scottish Law Commission proposes area of law that needs gap filling

2. Bill team consulted by lawyers

3. lawyers prepare instructions for parliamentary drafts

4. parliamentary drafters write the legislation by translating instructions into final legislative product

5. draft is then sent back and reviewed by lawyers, lawyers explain it to bill team, “back and forth” process goes on between Bill team and drafters with lawyers as intermediators, where the bill team (policy people) explains what they want and drafters actually write the law

6. Final legislative product gets introduced into parliament as a bill

7. Parliamentary process: procedure whereby evidence is taken on a bill, bill is allocated into a committee which looks into those this bill affects who give oral or written evidence

8. Committee prepares report with pros and cons of bill

9. Parliament has to agree on bill principles

10. Bill is amended by committee or by any member of parliament

11. After the bill is amended, there is no further evidence session

12. Bill goes back to chamber of parliament which considers further amendments

13. Final parliament hearing

14. Bill is passed

15. ...