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Studying Scots Law
Dedication
Fifth edition
Edited by
Megan H Dewart LL.B, BCL (Oxon), DipLP, Solicitor
Law Clerk to the Lord President, Scottish Courts and Tribunals Service
Preface
This book is intended to help, inform and advise people wishing to pursue a career in law in
Scotland, those who are in the early stages of a course in law (whether or not they are minded to
have a career in the field), or those who have a general interest in Scottish law and its distinctive
legal system and want to learn a little more about it. Each edition since the first in 1993 has been
written at a time of great change in the legal profession, and this is true as ever in this fifth edition.
They entail changes in the structure of the legal system generally, particularly the structure of the
civil courts with the implementation of the recommendations of the Gill Review; the nature and
forms of legal education; the publication of legal materials (most notably on the Internet), and the
funding of the higher education system generally. There have also been changes in the economic
and politic landscape more broadly. The economic climate has improved for the aspiring lawyer
since the last edition of this book in 2012.
On 23 June 2016, the United Kingdom electorate voted to leave the European Union in a
referendum. How and when this will occur, and under what conditions, is at the time of writing
uncertain. What is certain is that it will have a significant impact on the development of Scots law,
and the structure of the legal system.
Finally, I am very grateful to Professor Hector MacQueen for inviting me to take over the
editing of this book. Your confidence in me is much appreciated and valued.
I have stated the position as at the end of June 2016, although subsequent events have been
taken into account where possible.
Megan Dewart
Edinburgh
10 July 2016
Contents
Dedication
Preface
Table of Statutes
Table of Statutory Instruments etc
Table of European and overseas materials
Table of Cases
Index
Table of statutes
DIRECTIVES
Directive 89/104 here
Directive 98/5/EC here
REGULATIONS
Regulation 40/94 here
OVERSEAS LEGISLATION
FRANCE
Civil Code here; here
GERMANY
Civil Code here; here
Table of Cases
A
A v Scottish Ministers [2001] UKPC D5, [2003] 2 AC 602, [2002] here
UKHRR 1, [2002] HRLR 6, 2001 SLT 1331, 2002 SC (PC) 63, 2001
GWD 33-1312
Adams v Scottish Ministers [2004] Scot CS 127, 2004 SC 665 here
Al Megrahi v HM Advocate see Megrahi v HM Advocate
Axa General Insurance v Lord Advocate [2011] UKSC 46, 2011 SLT here
1061, [2011] 3 WLR 871
B
Booker Aquaculture Ltd (t/a Marine Harvest McConnell) v Scottish here
Ministers (Joined Cases C-20 & C-64/00) [2003] ECR I-7411
Brasserie du Pêcheur SA v Germany (Case C-46/93) [1996] ECR I-1029, here
[1996] QB 404, [1996] 2 WLR 506, [1996] All ER (EC) 301, [1996]
1 CMLR 889, [1996] IRLR 267, [1996] CEC 295
Britton v Johnstone (Curator Bonis to Eileen Britton) 1996 SLT 1272, here
1992 SCLR 947
Brown v Rentokil Ltd (Case C-394/96) [1998] ECR I-4185, [1998] All here
ER (EC) 791, [1998] 2 CMLR 1049, [1998] ICR 790, [1998] IRLR
445, [1998] 2 FLR 649, [1999] 1 FCR 49, (1999) 48 BMLR 126
Burnett’s Trustee v Grainger [2004] UKHL 8, 2004 SC (HL) 19, 2004 here
SLT 513, 2004 SCLR 433
C
Cadder v Her Majesty’s Advocate [2010] UKSC 43, 2011 SC (UKSC) here; here
13, 2010 SLT 1125, 2010 SCCR 951, [2010] 1 WLR 2601
Caird v Sime (1887) 14 R (HL) 37, (1887) 12 App Cas 326, 57 LJPC 2, here
57 LT 634, 36 WR 199, 3 TLR 681
Caledonia North Sea Ltd v London Bridge Engineering Ltd 2000 SLT here
1123, [2000] Lloyd’s Rep (IR) 249
Cameron v Hamilton’s Auction Marts Ltd 1955 SLT (Sh Ct) 74 here
Campbell & Cosans v UK Series A No 48, (1982) 4 EHRR 293 here
Cantiere San Rocco v Clyde Shipbuilding Co Ltd 1923 SC (HL) 105, here
[1924] AC 226, 93 LJPC 86, 130 LT 610
Christian Institute v Lord Advocate [2016] UKSC 51 here
Clancy v Caird 2000 SC 441, 2000 SLT 546, 2000 SCLR 526, [2000] here
HRLR 557, [2000] UKHRR 509
Cleisham v British Transport Commission 1964 SC (HL) 8, 1964 SLT 43 here
Crown Estate Commissioners v Shetland Salmon Farmers Association here
1991 SLT 166, 1990 SCLR 484
D
Donoghue v Stevenson 1932 SC (HL) 31, [1932] AC 562, [1932] All ER here; here, here, here; here; here
Rep 1101 LJPC 119, 147 LT 281, 37 Com Cas 350
Drake v Dow 2006 SCLR 456 here
F
Fraser v MacCorquodale 1992 SLT 229 here
G
Galbraith v HM Advocate (No 2) 2002 JC 1, 2001 SCCR 551, 2001 SLT here
953
Gibson v Lord Advocate 1975 SC 136, 1975 SLT 134, [1975] 1 CMLR here
563
Grant v Australian Knitting Mills [1936] AC 85, [1935] All ER Rep 209, here
105 LJPC 6, 154 LT 18, 52 TLR 38, 79 Sol Jo 815
H
H v Sweeney see X v Sweeney
I
Imperial Tobacco Ltd, Petr [2012] CSIH 9, 2012 GWD 11-200 here
J
John (Helen) v Donnelly 1999 SCCR 802, 1999 GWD 31-1463 here
K
Knight v Wedderburn (1778) Mor 14545 here
L
Law Hospital NHS Trust v Lord Advocate 1996 SC 301, 1996 SLT 848, here, here
[1996] 2 FLR 407, [1996] Fam Law 670
Lord Advocate’s Reference (No 1 of 2000) 2001 JC 143, 2001 SCCR here
296, 2001 SLT 507
Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466, 2002 SCCR here
435
M
MacCormick v Lord Advocate 1953 SC 396, 1953 SLT 255 here, here, here
McKie v Orr 2003 SC 317 here
McKie v Strathclyde Joint Police Board 2004 SLT 982 here
McKie v Scottish Ministers [2006] CSOH 54, 2006 SC 528 here
Mackintosh v Lord Advocate (1876) 3 R (HL) 34, (1876) 2 App Cas 41 here
McCowan v Wright (1852) 15 D 229 here
McFarlane v Tayside Health Board 2000 SC (HL) 1, [2000] 2 AC 59, here
[1999] 3 WLR 1301, [1999] 4 All ER 961, [2000] 1 FCR 102, [2000]
Lloyd’s Rep Med 1, 52 BMLR 1, (1999) 149 NLJ 1868
McLean v HM Advocate [2009] HCJAC 97, 2010 SLT 73, 2010 SCCR here
59
McMichael v UK (1995) 20 EHRR 205, [1995] 2 FCR 718, [1995] Fam here
Law 478
Manuel v HM Advocate 1958 JC 41, 1959 SLT 23 here
Megrahi v HM Advocate 2002 JC 99, 2002 SLT 1433, 2002 SCCR 509 here
Megrahi v HM Advocate 2008 SLT 1008 here
Millar v Dickson 2002 SC (PC) 30, [2002] 1 WLR 1614, 2001 SLT 988, here
2001 SCCR 741
Millars of Falkirk v Turpie 1976 SLT (Notes) 66 here
Morgan Guaranty Trust Co of New York v Lothian Regional Council here
1995 SC 151, 1995 SCLR 225
Murray v Rogers 1992 SLT 221 here
P
Percy v Church of Scotland Board of National Mission [2005] UKHL 73, here
[2006] 2 AC 28, 2006 SC (HL) 1
R
Robbie the Pict v Hingston (No 2) 1998 SLT 1201, 1998 GWD 2-89 here
Rogers v Parish (Scarborough) Ltd [1987] QB 933, [1987] 2 WLR 353, here
[1987] 2 All ER 232, [1987] RTR 312, (1987) 6 TLR 55, (1987) 131
SJ 223, (1987) 84 LS Gaz 905
RTE v Commission (Cases C-241/91P & 242/91P) [1995] ECR I-743, here
[1995] All ER (EC) 416
S
S v HM Advocate 1989 SLT 469; sub nom Stallard v HM Advocate 1989 here
SCCR 248
SA CNL-Sucal NV v Hag Gf AG (Case C-10/89) [1990] ECR I-3711, here
[1990] 3 CMLR 571, [1991] FSR 99
Salvesen v Riddells & Lord Advocate [2012] CSIH 26, 2012 GWD 12- here
234
Scotch Whisky Association v Lord Advocate [2014] CSIH 38 here, here
Sharp v Thomson; sub nom Sharp v Woolwich Building Society 1997 SC here
(HL) 66, [1997] 1 BCLC 603, 1997 SLT 636, 1997 SCLR 328, 1997
GWD 9-364
Shetland Times Ltd v Wills 1997 SC 316, 1997 SLT 669, 1997 SCLR here
160, [1997] FSR 604, [1997] EMLR 277, (1997) 16 Tr LR 158,
[1997] Info TLR 1, [1997] Masons CLR 2, 1997 GWD 1-5
Slater v HM Advocate 1928 JC 94, 1928 SLT 602 here
Stallard v HM Advocate see S v HM Advocate
Starrs v Ruxton 2000 JC 208, 2000 SLT 42, 1999 SCCR 1052 here; here
Stewart v Secretary of State for Scotland 1998 SC (HL) 81, 1998 SLT here
385, 1998 SCLR 332, 1998 GWD 4-153
T
Tetra Pak Rausing SA v Commission (Case T-51/89) [1990] ECR II-309, here
[1991] 4 CMLR 334, [1991] FSR 654
V
Van Zuylen Frères v Hag AG (Case 192/73) [1974] ECR 731, [1974] 2 here
CMLR 127, [1974] FSR 511
W
Whaley v Lord Advocate [2003] Scot CS 78, [2004] SC 78, 2004 SLT here
425
X
X v Sweeney 1982 JC 70, 1982 SCCR 161; sub nom H v Sweeney 1983 here
SLT 48
Part I
The primary aims of this book are to provide an account of the educational and training
requirements for entry into the Scottish legal profession, and to give some guidance on the study
skills needed to fulfil these requirements successfully. But it is impossible to come to grips with
this subject without some knowledge and understanding of the legal system in Scotland and of the
profession itself. This is particularly so when in recent years both system and profession have been
undergoing major changes. Part I is therefore an account of the Scottish legal system.
Chapter 1
1.01 There are three major legal systems in the United Kingdom. One is in England and Wales,
and another is in Northern Ireland. The third, and the one with which this book is primarily
concerned, is in Scotland. Although these legal systems share a legislature in the Westminster
Parliament for the making of new laws, each of them has long had its own structure of courts, its
own ways of qualifying as a lawyer, and its own legal rules. In addition, Scotland now has its own
Parliament in Edinburgh, while Northern Ireland (not to mention Wales) has an Assembly. The
reasons for these legal divisions of the United Kingdom are historical; we need only concern
ourselves with Scotland.
1.02 There is an independent Scottish legal system today because until the Union of the Crowns
in 1603 and the Union of the Parliaments in 1707 Scotland was an independent sovereign state.
When King James VI of Scotland became James I of England and Great Britain in 1603, there was
considerable interest in the possibility of establishing a single legal system for his two kingdoms,
while during the Cromwellian interlude of the 1650s the possibility moved some way towards an
actuality. But the 1707 Union, while creating a single British Crown and Parliament, also showed a
recognition that the establishment of a single legal system and body of law for the whole of the
new United Kingdom was not really a practical proposition. Article XVIII provided for the
continuation of Scots law after the Union, excepting only the ‘Laws concerning Regulation of
Trade, Customs and Excises’, which were to ‘be the same in Scotland, from and after the Union as
in England’. Change to Scots law was allowed under the Article, but in matters of ‘private right’
such change had to be for the ‘evident utility’ of the Scottish people. Only in matters of ‘public
right’ might the aim be simply to make the law the same throughout the United Kingdom.
1.03 Article XIX of the Union laid down that the principal Scottish courts, the Court of Session
and the High Court of Justiciary, should ‘remain in all time coming’ as they were then constituted,
subject only to regulations for the better administration of justice which the new British Parliament
might choose to make. The Article also stated that all the other Scottish courts should remain, ‘but
subject to Alterations by the Parliament of Great Britain’. If you have already taken the point which
flows from the absence of qualification to this last quotation, namely that such alterations to the
other courts do not have to be for the better administration of justice, you are well on your way to
thinking like a lawyer. A final point in Article XIX was that Scottish cases were not to be dealt with
in the English courts ‘in Westminster-hall’, which likewise continued their pre-Union existence.
1.04 These Articles remain as the formal basis for the continuing existence of an independent
Scottish legal system and law. This is why when you live and work in Scotland you are governed
by laws which may well be and often are quite different from those found in the other parts of the
United Kingdom. It is also why, when you study law in Scotland, it will probably be Scots law that
is the basis for your course. This is very important if you want to be a lawyer. If you take a law
degree in Scotland, the quickest route to final professional qualification thereafter will also be in
Scotland. If you think you want to practise law in England and Wales, or in Northern Ireland, you
are probably best to take your degree in the jurisdiction concerned. But this is not absolute. Dundee
University offers both a Scottish and an English law degree. Also, for reasons and by routes to be
discussed later (see paras 8.09–8.12), a Scottish law degree can be used to obtain professional
qualifications elsewhere in the United Kingdom (not to mention the rest of the world). So you need
not feel that you are restricting yourself to a purely Scottish legal career when you embark upon a
Scots law degree. Of course, if you have no intention of becoming a lawyer, then the question of
where you took your law degree matters a great deal less.
1.05 The remainder of this chapter sets out in simple terms some of the major characteristics of
the Scottish legal system as it has taken shape since the 1707 Union. The choice of topics has been
dictated by what is needed for understanding some of the discussions later in the book. The main
perspective chosen is a historical one, which offers the easiest way of explaining some of the quirks
in a system which, having developed slowly over time rather than being produced according to a
grand overall design, is not always straightforward.
1. The European Union, created by the Maastricht Treaty 1992, was founded upon the European Community and
two other ‘pillars’ (ie common foreign and security policy and police and judicial cooperation in criminal
matters). Following the ratification of the Lisbon Treaty 2007, all three pillars are now subject to the democratic
and judicial controls of the Community system. It is therefore correct to speak of ‘EU’ law, although
‘Community’ law can be used to refer to the law pre-Lisbon.
1.07 In May 1999 the Scottish Parliament, which had been set up under the Scotland Act 1998,
began to sit in Edinburgh.1 The initial sessions of its 129 members (MSPs) were in the Church of
Scotland Assembly Hall on The Mound. In 2004, after a long and expensive construction saga, a
purpose-built home opened at Holyrood. From the beginning the Scottish Parliament has had an
excellent website (http://www.scottish.parliament.uk/). Under Schedule 5 of the Scotland Act as
amended by the Scotland Act 2012 the Parliament has power to make laws on any topic not
specifically reserved to the Westminster Parliament. The latter also retains the power to legislate in
the areas otherwise devolved to Edinburgh. This reflects a traditional theory about government in
the United Kingdom known as the ‘Supremacy of Parliament’ (ie Westminster), which means that
Parliament is legislatively omnicompetent, the courts must apply the laws it makes no matter how
abhorrent or repugnant they may be, and other bodies can only legislate so far as allowed to do so
by Westminster. However, many people now think that this doctrine is out-of-date or in need of
modification. It first had to be adjusted when Britain entered the European Community in 1973. A
fundamental principle of EU law is that national law is subject to EU rules, and where the two are
inconsistent, the latter prevails. There are now several examples of British statutes being over-
ridden in our courts on this ground. Accordingly the supremacy of Parliament has ceased to be
absolute. A further constraint was introduced when the Human Rights Act 1998 came into force on
2 October 2000. Under this statute a court can declare Westminster legislation to be incompatible
with the European Convention on Human Rights (ECHR), in effect requiring Parliament to change
the law in question to make it compatible with the Convention. In practice, Westminster also does
not legislate very often in the areas which have been devolved to the Scottish Parliament, and so
there is a further, factual, limitation on the supremacy of Westminster. The Scottish Parliament is
also able to repeal or amend Westminster legislation which is among the devolved matters.
1. At the same time there came into existence the Scottish Executive, the civil service supporting the Scottish
Ministers who form the governing group in the Scottish Parliament. Under the Scotland Act 2012 the Executive
is now officially known as the Scottish Government (a title that had however been assumed when the SNP
formed its first administration in 2007). See the Scottish Government website, http://www.scotland.gov.uk/.
There is also the Westminster Government’s Scotland Office in Whitehall, much reduced in significance
compared to the former Scottish Office: see its website, http://www.scotlandoffice.gov.uk.
1.08 It has been argued for many years that in Scotland there is another limitation upon the
supremacy of Westminster, arising from the provisions of the 1707 Union already referred to
(above, paras 1.02–1.03). Thus the legislation providing for Britain’s accession to the European
Community in 1973 was challenged on the grounds that it was not for the ‘evident utility’ of the
people of Scotland (Gibson v Lord Advocate 1975 SC 136), while claims were also made that the
community charge or poll tax legislation for Scotland (the Abolition of Domestic Rates etc
(Scotland) Act 1987) and the Skye Bridge toll charges infringed the Union agreement by not
making, in a matter of ‘excise’, ie taxation, equal provision with respect to England (Murray v
Rogers 1992 SLT 221; Fraser v MacCorquodale 1992 SLT 229; Robbie the Pict v Hingston 1998
SLT 1209). The Scottish courts have always rejected such claims when made, but have never said
that it is absolutely impossible to challenge legislation on the grounds of inconsistency with the Act
of Union. It remains to be seen whether a successful challenge will ever be brought.
1.09 The supremacy doctrine does not apply to the Scottish Parliament in its own right, since
legislation beyond its devolved powers or contrary to either EU law or the ECHR is challengeable
in court and is not to be given any effect as law. The legislation passed by the Scottish Parliament
has generally survived challenges made to it in court.1
1. See A v Scottish Ministers 2000 SC (PC) 63; Adams v Scottish Ministers 2004 SC 665; Whaley v Lord Advocate
2004 SLT 425; Axa General Insurance v Lord Advocate [2011] UKSC 46; 2011 SLT 1061; Imperial Tobacco
Ltd, Petitioner [2012] CSIH 9; 2012 GWD 11-200; Scotch Whisky Association v Lord Advocate [2014] CSIH 38.
But see Salvesen v Riddells and Lord Advocate [2012] CSIH 26; 2012 GWD 12-234; Christian Institute v Lord
Advocate [2016] UKSC 51.
Legislative procedure
1.10 The Westminster Parliament is bicameral: that is, divided into two chambers, the House of
Commons and the House of Lords. Before any new measure, or Bill, can become law, it must be
passed by both Houses and receive the Royal Assent (this last being a formality in modern
constitutional practice). The laws passed at Westminster are known as Acts or statutes. Statutes can
also confer power on bodies other than Parliament (eg a government minister or a local authority)
to make law for defined purposes: there is a vast amount of such subordinate legislation, or
statutory instruments, every year. In carrying out its legislative function, Parliament may make a
statute which is applicable to Scotland only, and not to the rest of the United Kingdom (although
this is much less likely since devolution). The easy way to identify such a statute is because the
word ‘Scotland’ appears in its title: eg the Law Reform (Miscellaneous Provisions) (Scotland) Act
1990, the Age of Legal Capacity (Scotland) Act 1991. But the absence of such an identifier in its
title does not mean that the statute is inapplicable to Scotland, and there is no practice of inserting
‘England and Wales’ into statute titles even when the legislation is indeed limited to that
jurisdiction. Instead you usually have to look for a section saying that the statute is not applicable
to Scotland. It is also perfectly possible for a statute to be applicable throughout the United
Kingdom. Examples you are likely to encounter on a law course include the Companies Acts, the
Finance Acts (which lay down the law on general taxation), the Consumer Credit Act 1974 and a
number of criminal law statutes such as the Road Traffic Act 1988. Very often these United
Kingdom statutes are cast in the technical language of English law, and a Scots lawyer reading
them has to look for the section of the Act, usually headed ‘Application to Scotland’, in which
these terms are translated into Scottish legal terminology. The Parliamentary draftsmen who write
the text of statutes refer to such sections as ‘putting a kilt’ on the legislation. A further legislative
technique is to deal with both Scotland and the other countries in one statute, but to give each
jurisdiction its own part or parts within the text. Examples of this which again you are likely to
encounter in law studies are the Unfair Contract Terms Act 1977 and the Insolvency Act 1986.
1.11 The Scottish Parliament is unicameral, and Bills need only be passed by its single chamber
and receive the Royal Assent to become Acts. There are complex pre-legislative procedures
designed to ensure as far as possible that legislation passed by the Scottish Parliament is within its
devolved competence. The committees of the Parliament also play an important role in the scrutiny
of legislation in draft. An Act of the Scottish Parliament (ASP) is usually identified in its short title
by the appearance in it of the bracketed word ‘Scotland’ – for example, the Adults with Incapacity
(Scotland) Act 2000. Some ASPs do however only have the word ‘Scottish’ to indicate their origin
– for example, the Scottish Local Government (Elections) Act 2002. ASPs may also be cited by
year and their numbers in the sequence of passage in that year, eg the two Acts just mentioned are
respectively asp 2000, no 4, and asp 2002, no 1. The appearance of this reference after the short
title will tell you whether the Act comes from Holyrood or Westminster. Such Acts can only extend
to Scotland or, more accurately, can only form part of Scots law.
1.12 One further point worth mentioning briefly is that Acts of the pre-1707 Scottish Parliament
still form part of the law so far as not repealed at Westminster or, from 1999 on, at Holyrood.
Further, those not so repealed are not necessarily protected from challenge in the courts. It is also
possible to argue in court that pre-1707 legislation has ‘fallen into desuetude’, that is, disuse, and is
no longer observed. Most of the pre-1707 Acts which have not already been repealed or held in
desuetude are probably now unlikely to be subject to this kind of challenge, but one never knows
when an obscure old law may be dug up if it will serve someone’s purpose to do so. In these
circumstances a doctrine of ‘desuetude’ can be useful; on the other hand, sometimes ancient law
can provide helpful solutions not available in more modern sources. See for example Britton v
Johnstone 1992 SCLR 947, reviving the Curators Act 1585.
1.13 The foundation documents of the European Union are the Treaty of Rome 1957, and its
subsequent amendments by the Single European Act 1986, the Treaty on European Union made at
Maastricht 1992, the Treaty of Amsterdam 1997, the Treaty of Nice 2001 and the Treaty of Lisbon
2007.1 Under these treaties, the two main forms of EU legislation are Regulations and Directives.
Regulations are directly applicable as law throughout the European Union, often giving citizens
enforceable rights. Directives require only Member States to take action in their own legislatures
within a certain period, but may nonetheless have direct effect in giving citizens rights as well in
the event of faulty or non-implementation by their Member State. In the United Kingdom,
Directives are typically carried through by a statute or by statutory instruments using powers under
the European Communities Act 1972, with the Scottish Parliament or Government also having
responsibility in devolved matters. EU legislative power is gradually being extended, although the
Treaty of Maastricht recognised (but did not define) a principle of ‘subsidiarity’, whereby decisions
are to be taken as closely to the citizen as possible and in areas outside its exclusive competence the
European Union will act only if the objectives in question cannot be sufficiently achieved by the
Member States themselves. The political problem lies, of course, in defining when the objective
cannot be sufficiently achieved by the Member States and can be best achieved by the European
Union.
1. The Lisbon Treaty, which entered into force in December 2009, makes a number of amendments to the founding
treaties which were initially put forward as a Constitution of the European Union, and then revised following
failure to be ratified by Member States in 2005.
Background to legislation
1.14 What lies behind the production of legislation? A whole variety of factors political, social
and economic may be at work, depending on what it is the legislation is trying to achieve. Part of
the function of government is to identify problems which require change or addition to the law.
Generally when a government intends to introduce legislation, its proposals are preceded by
consultation and discussion papers in which the problems are set out and options for new law put
forward. The aim of these documents is to obtain general comment and criticism which can be
taken on board before draft legislation is put to the legislature. This is the opportunity for interested
persons and pressure groups to have their initial say on the matter; these opportunities continue for
as long the legislation is being debated in the legislature. Of course interested persons and pressure
groups do not have to wait until government decides to take action; a crucial part of the political
process is persuading government to take action. If the government cannot be persuaded, or is
unwilling to find time to take action, attention may shift to individual members of the legislature,
who can also propose new legislation. One of the problems in this is that a great deal of the most
important subject-matter of the law is not very interesting politically – few votes are usually to be
won in dealing with technical difficulties in the law of contract or trusts, for example – but reform
may nonetheless be very necessary. In 1965, to help keep the more technical areas of the law up-to-
date in the United Kingdom, the then-government established the Law Commissions, one for
England and Wales and one for Scotland. The Scottish Law Commission, which is based in
Edinburgh (website http://www.scotlawcom.gov.uk/), works to programmes of law reform,
monitoring particular areas of law, issuing consultation papers on problems and possible reforms,
and reporting to government with legislative proposals and draft Bills. Many important legislative
changes in Scots law have followed from the activities of the Commission.
1. The Scottish courts have a website: http://www.scotcourts.gov.uk. The site also contains information about the
sheriff courts, for which see further below, paras 1.21–1.24. See too the Judiciary of Scotland website:
http://www.scotland-judiciary.org.uk/1/0/Home.
1.17 After 1532 the Lords of Session firmly established their court as the most important civil
court in Scotland. From 1532 on there were fifteen Lords, headed by the Lord President. All fifteen
sat together to determine cases, but generally one would be deputed to take the evidence in the
cases before the court reached its decisions. This led to the evolution of the Outer and Inner Houses
of the court. The Inner House was where the Lords sat together in an inner room of their building
(originally either Edinburgh’s Tolbooth, the site of which is marked by the ‘Heart of Midlothian’
outside St Giles Kirk, or the west end of St Giles itself; then from 1638 the present location of
Parliament House); the Outer House was a room near the front where the evidence was heard by
the deputed Lord. In the early nineteenth century, this system was rationalised. Some of the Lords
came to sit permanently in the Outer House, not only hearing the evidence but deciding the case as
well. Henceforth the term ‘Lord Ordinary’ would only be applied to the judges of the Outer House.
The Inner House became a court to which litigants could appeal against the decisions of the Lords
Ordinary in the Outer House. Two divisions of the Inner House, each ultimately consisting of four
Lords, were created: the First Division, in which the Lord President presides, and the Second
Division, in which the Lord Justice-Clerk presides (for whom, see para 1.19 below). These
Divisions were of equivalent status.
1.18 This remains in essence the structure of the Court of Session. If you begin an action in the
court, you start before a Lord Ordinary in the Outer House. In 2014–15, 5,164 causes were initiated
in the Outer House.1 The vast majority of those actions were for reparation in damages for personal
injuries. To assist with the disposal of this and criminal business (for the extent of which see below,
para 1.20), the 34 Senators have been supplemented by a number of Temporary Judges since 1990
(see, for a holding that such judges are not contrary to the fair trial provisions of the ECHR, Clancy
v Caird 2000 SC 441). Any appeal against the Lord Ordinary’s decision (technically known as a
reclaiming motion) goes to one of the two Divisions of the Inner House, where normally three of
its judges will consider the matter. Today there are often Extra Divisions in order to get through the
case-load efficiently. However there are still reminders of the days when the whole court sat
together, as it remains possible to convene the Lords, or an odd number of them above three, to
reconsider particularly difficult cases or deal with matters of high importance. The decision is then
described as a decision of the Whole Court. See for a good example Law Hospital NHS Trust v
Lord Advocate 1996 SC 301, considering when if at all life support for a PVS patient might be
withdrawn.
1. Statistics about civil courts here and in later paragraphs are derived from Civil Judicial Statistics 2014–2015 (the
latest available in July 2016), accessible on the Internet at http://www.gov.scot/Resource/0049/00497242.pdf.
1.19 In 2007, the then Lord Justice-Clerk, Lord Gill, was commissioned to carry out a review of
the civil court structure in Scotland. The Report of the Scottish Civil Courts Review was published
in 2009. The report proposed sweeping changes to the level at which civil business would be
determined in the Scottish courts, with the headline reform being the increase in the privative
(exclusive) jurisdiction of the Sheriff Court from £5,000 to £150,000. The report recommended the
creation of a new tier of court, the Sheriff Appeal Court, which would determine appeals from
decisions of a sheriff in civil cases, and in summary criminal cases (sheriff and justice of the peace
court). There would only be onward appeal from the Sheriff Appeal Court to the Inner House
where a point of general public importance was raised. The report also recommended that a
specialist sheriff court be established to deal, in particular, with the large volume of personal injury
cases which were previously raised in the Court of Session, and which would transfer to the Sheriff
Court under the new regime. The Review also made a number of other proposals on procedural
reform, including the creation of a new tier of Summary Sheriff. The Scottish Government in large
part accepted the proposals of the Review, and implemented the majority of them by the passage of
the Courts Reform (Scotland) Act 2014. From 22 September 2015, only cases with a value of
£100,000, or which raise a point of wider public importance, can be raised in the Court of Session.
The implementation of the Gill reforms has caused, and will continue to cause, a significant
redistribution in the civil business before the Scottish courts.
1. Statistics on the criminal courts here and in later paragraphs are derived from the Statistics on Case Processing
(http://www.crownoffice.gov.uk/images/Documents/Statistics/Case%20Processing%20Financial%20Year%20Ap
ril%202015%20to%20March%202016.pdf), Scottish Government Criminal Proceedings in Scotland 2014/15
(accessible at http://www.gov.scot/Publications/2016/02/6001).
1.24 Today there are six sheriffdoms in Scotland, each with its own Sheriff Principal. The
Sheriff Principal is responsible for, amongst other things, the efficient disposal of court business in
the sheriffdom. The sheriffdoms are in turn divided into thirty-nine sheriff court districts, each
having its own sheriff court building.1 Like the Lord Ordinary in the Outer House of the Court of
Session, the sheriff is a judge of first instance in civil matters, sitting alone. There are relatively few
civil cases which cannot be begun in the Sheriff Court so long as the court has jurisdiction over the
defender by virtue of his residence in the sheriffdom, and over the subject-matter of the action. The
main excluded topic is reduction (ie nullification) of documents. The Sheriff Court has exclusive
jurisdiction in cases of up to £100,000 in value. There is no upper limit on the value of a claim
which can be brought in the Sheriff Court. Procedure varies: most actions will follow what is called
ordinary procedure, but there also exist the less formal summary cause and small claim procedures
for actions of between £5,000 and £3,000, and under £3,000 in value respectively.2 The vast
majority of civil cases in Scotland are raised in the Sheriff Court. Of that total, the majority are
small claim actions for payment of a debt. To assist the 142 sheriffs permanently based or resident
in particular sheriffdoms, there are now no more than eighty part-time sheriffs who may sit from
time to time in any sheriffdom. These replaced the previous ‘temporary’ sheriffs, whose
dependence on the head of the criminal prosecution service (the Lord Advocate – see further para
1.37 below) for their continuation in office was held to disable them from holding an objectively
fair trial, contrary to Article 6 of the ECHR (see Starrs v Ruxton 2000 JC 208; Millar v Dickson
2002 SC (PC) 30). On 22 September 2015, the All-Scotland Personal Injury Court (ASPIC), sitting
in Edinburgh Sheriff Court, took up its jurisdiction. There has already been a significant transfer of
business from the Court of Session to ASPIC as a consequence of the increase in the exclusive
jurisdiction of the Sheriff Court. The Sheriff Appeal Court has replaced the right of appeal to the
Sheriff Principal of the Sheriffdom, against a decision of a sheriff at first instance.
1. Previously 49 sheriff court districts, but plans to close 10 sheriff courts were proposed by the Scottish Court
Service, and approved by the Scottish Government, in 2013.
2. Small claim and summary cause procedure will be replaced with Simple Procedure, as part of the implementation
of the recommendations of the Scottish Civil Courts Review. As at July 2016, the provisions are not yet in force.
1.25 The criminal jurisdiction of the Sheriff Court is also wide, but it is excluded from the major
crimes (murder, rape, treason and piracy) which are known as ‘pleas of the Crown’, and which
must be tried in the High Court of Justiciary. Most other criminal cases can be tried in the Sheriff
Court, but its powers of sentence are limited according to the procedure adopted in the prosecution.
Procedure may be solemn, before a jury, as in the High Court, or summary, before the sheriff sitting
alone. The maximum sentence of imprisonment which a sheriff sitting with a jury can impose from
1 May 2004 is five years. If a person convicted in the Sheriff Court is thought to merit a longer
sentence, the case is remitted to the High Court, which alone has the requisite powers to give it.
The prosecutor may also decide in advance of a trial to bring the prosecution in the High Court
rather than the Sheriff Court if it is thought that the greater sentencing powers of the High Court
ought to be used in the event of conviction. By contrast, very petty crimes will often be prosecuted
in the local Justice of the Peace Court, where procedure is always summary and the judge (known
as a justice of the peace) is not a lawyer (http://www.scottishjustices.org). The maximum sentence
a Justice of the Peace can give is sixty days imprisonment. The vast majority of criminal cases are
dealt with at summary level. In 2014/15, around 39% of the total number of criminal convictions in
Scotland were in the Justice of the Peace Courts, with 56% in the Sheriff Court at summary level.
Only 4% of convictions were in Sheriff Court solemn cases, with less than 1% in the High Court of
Justiciary. The route of appeal remains to the High Court of Justiciary as the Court of Criminal
Appeal in solemn cases.
1.29 The Court of Justice sits in Luxembourg and is made up of one judge from each of the
Member States. Of the British judges to have served on the court so far, two were Scots lawyers:
Lord Mackenzie Stuart (1973–1988) and David Edward (1992–2004). In addition to the judges,
there are eight Advocates-General, whose function is to assist the Court in reaching its decisions by
presenting reasoned submissions on cases brought before it. The court’s jurisdiction is not confined
to references from national courts; it also deals with disputes between the European Union’s other
institutions, on the one hand, and between Member States and commercial enterprises on the other.
For the Court’s website, see http://europa.eu/about-eu/institutions-bodies/court-
justice/index_en.htm. With the growth of the court’s work-load beginning to over-burden it, a new
Court of First Instance was established in 1989 to deal with some of the cases, but this does not
(yet) include questions referred by the national courts. This branch of the CJEU is now known as
the General Court, and its decisions may be appealed on points of law (Pourvoi) to the Court of
Justice.
1. For statistical information see the archived Privy Council website, http://www.privy-
council.org.uk/output/Page34.asp.
1.35 Those parts of the law which are not criminal law are usually referred to as forming the
civil law, and lawyers will talk of being either civil or criminal practitioners. There are a number of
aspects to the distinction other than the different court systems, but they should not be over-
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— Tunsin teidät heti: te tapoitte Kannenbergin! Kaikkien silmät
kääntyivät heti Wolodyjowskiin, joka kiersi viiksiään, kumarsi ja
sanoi:
Kuningas sanoi:
— Tulkaahan lähemmäksi!
— Jos söisin sinut, niin voisin sanoa syöneeni härän lihaa, mutta
pelkään, että se ateria veisi järkeni jäännöksetkin!
— Jos minä olen härkä ja eno on minun enoni, niin mikä on eno
sitten?
— Kuuluu sen verran, että jos sinä olet härkä, niin kysy ensin,
kuka
oli isäsi, äläkä etsi enoasi, sillä härkä ryösti Euroopan, mutta
Euroopan veli, joka oli hänen jälkeläistensä eno, oli silti ihminen.
Ymmärränkö?
— Syö mikä hitto tahansa, mutta anna minun nukkua! Mitä siellä
on, herra Michal? Miksi me pysähdyimme?.
— On viisikolmatta.
Vasta kun yhä uusia lippuja ilmestyi näkyviin metsän sisältä, alkoi
kuumeinen liike ruotsalaisten leirissä. Nähtiin pienten
ratsuväkiosastojen ja upseerien liikkuvan kiireesti rykmenttien välillä.
Kirjava ruotsalainen jalkaväki alkoi keräytyä keskelle tasankoa,
rykmentit asettuivat järjestykseen puolalaisten sotamiesten nähden,
ja pian välkkyivät auringon paisteessa pitkät keihäät, joilla
jalkamiehet tavallisesti torjuivat ratsuväen hyökkäyksiä. Viimein
saapuivat rautapukuiset ruotsalaiset ratsumiehet ja asettuivat
paikoilleen siipien päihin. Tykkejä vedettiin myös kentälle. Kaikki
nämä valmistelut ja liikkeet näkyivät aivan selvästi, sillä aurinko
valaisi kirkkaasti koko seudun.