Sources of Scots Law

Custom
1. Must be certain and notoious
2. Wilkie V Scottish Aviation Ltd 1956
Equity
1. Fairness or resonableness
2. Exercise of the equitable power (NOBLE OFFICIUM) of the Court of Session or High Court of Justiciary. This is exercied as a last resort to declare actions unlawful or to grant a remedy where otherwise no remedy would be available.
  1. Khaliq V HM Advocate
Legislation
1. UK Constitution
  1. The UK constitution cannot be found in a single document
  2. Parliamentary sovereignty
    1. The Sovereign Monarch - Queen Elizabeth II
      1. Monarch's law making power was given to parliament by the Act of Settlement in 1700.
      2. The Queen is only a figurehead
      3. Some Royal Preogatives remain.
        Appointment of Ministers (selected by the Prime Minister)
        Dissolution of Parliament (on request of the Prime Minister)
        Power of Pardon (the Royal Pardon)
      4. House of Commons
        Consists of elected members
        Elected every 5 years
        Role is to scrutinise legislation
        Question the action of government ministers
        Debate isues
        Check the financial probity of the Government
      5. House of Lords
        Unelected members
        Recently reformed
        Mixture of elected and appointed
        Reflect balance of political parties
        Formaly had a judicial role now given to the Supreme Court
  3. Legislation of UK Parliament most authoritative source of law in the UK
2. The UK is bound by EU legislation which is then passed in to law by the UK parliament
3. The UK parliament is the supreme law making body in the UK.
4. The Scotland Act 1998 devolved most matters relating to Scotland to the Scottish Parliament. UK parliament retains the powers to legislate on matters contained in the "reserved matters2 list - Schedule 5 of the 1998 Act.
Authoritative Writings / Industrial Writers
1. Mainly 17th and 18 Century writers
2. Statement of an idustrial writer has same force as a decision of the Inner House of the Court of Session
3. List is now closed
Judicial Precedent / Case Law
1. Scotland has a separate Court System from England, Wales and NI
2. English and Scots Law relies heavily on a system of judicial precedent
3. Judge made law taken from decisions in individual cases
  1. The precedent must be on the same point of law
  2. It must have been RATIO DECIDENDI and not OBITER DICTA
  3. It must have been made by a higher court.
4. A court is bound to follow the principles of law set down in previous cases by a higher court.

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Sources of Scots Law

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