Sources Of Law - Part 1 PDF

Sources of Law - Part 1 The UK joined the EU on 1 January 1973 There are TWO main types of EU law, primary and secondary Primary: The Treaties of the European Union Founding Treaty - Treaty of Rome 1957 (EEC) The most important EU law is in the Treaty on European Union (TEU) (2007) and the Treaty...

Sources of Law - Part 1 The UK joined the EU on 1 January 1973 There are TWO main types of EU law, primary and secondary Primary: The Treaties of the European Union Founding Treaty - Treaty of Rome 1957 (EEC) The most important EU law is in the Treaty on European Union (TEU) (2007) and the Treaty on the Functioning of the European Union (TFEU) 2007 Often called the “Lisbon Treaty” (2007) Art 50 TEU of “Lisbon” is the basis of the UK’s withdrawal from the EU – so called “Brexit” - Scotland/The UK has no Written Constitution! - Legislation - a formal and primary source of law - “Legislation” can be defined as “laws enacted by a law-making body” - Legislation applying to Scotland comes from 2 main sources: - The UK (Westminster) – the UK Parliament, applying in Scotland from 1707 (650 MPs) - Scotland (Holyrood) – the Scottish Parliament, set up 1 July 1999 (129 MSPs) - ELECTED representatives There are various types of UK legislation Most is enacted by the UK Parliament – The Legislature Comprising the House of Commons, House of Lords and the King Some is enacted by other means - most important of which is secondary legislation (including Statutory Instruments) Legislation enacted by the UK Parliament (the legislature) is the most authoritative of all sources of law in the UK UK Parliament legislation is the Highest Source of Law in the UK UK Acts (Statutes) cannot be challenged by/in the UK courts There is a fixed process whereby Acts or statutes are made/enacted in UK Parliament Generally a Bill is “read” three times in each House of Parliament and then the King gives formally Royal Assent to the Bill Royal Assent transforms a Bill (a proposal) into an Act (legislation) Some UK Acts apply to Scotland and some do not After the re-establishment of the Scottish Parliament in 1999 the amount of UK-made law applying to Scotland was reduced You must look at the ‘extent’ section of the UK Act in question to see if it applies to Scotland or not Some UK Acts apply only to Scotland, e.g. the Civic Government (Scotland) Act 1982 NOTE: Even after Devolution/The Scotland Act 1998 The UK Parliament can still enact legislation which applies to Scotland There are different types of United Kingdom Acts The most important generally are governmentally sponsored public Acts of Parliament The elected majority Government pushes through Acts which are on its legislative agenda Examples of some notable United Kingdom Acts: The Scotland Act 1998 The Human Rights Act 1998 The War Crimes Act 1991 The European Communities Act 1972 The European Union (Withdrawal Agreement) Act 2020 A lesser form of UK legislation is “secondary legislation” or “delegated legislation” Two main types of secondary legislation are Statutory Instruments (SI) and Byelaws Statutory Instruments are created under the authority of an Act of Parliament The Act giving authority for the SI is called a “parent Act” Minimum Wage Act 1999 (Parent Act) Statutory Instrument 2017 No. 465 The National Minimum Wage Regulations 2017/465 Byelaws are rules that Local Authorities are empowered to pass under an Act of Parliament The Local Government (Scotland) Act 1973, as amended, gives powers to councils to make rules on local issues Such as drinking in public… ABERDEEN CITY COUNCIL (DRINKING IN PUBLIC PLACES) BYELAWS 2009 “In exercise of the powers conferred upon them by sections 201 and 202 of the Local Government (Scotland) Act 1973, the Scottish Ministers hereby confirm the foregoing byelaws. Legislation - Scotland The Scottish Parliament was re-established on 1 July 1999 It is governed by the Scotland Act 1998 All legislation enacted by or under the Scottish Parliament must be within the limits of the 1998 Act – “Competence” Scottish Acts of Parliament may be declared invalid in a court if they exceed their constitutional legislative authority under the Scotland Act 1998 All ASPs must abide by the limits of Scotland Act/s and Human Rights Law NOTE! Indy Ref 2 Case ??????? The scheme under the Scotland Act 1998 is that the Scottish Parliament and Scottish Government have the power to act in all areas except those reserved to the United Kingdom Parliament Scottish Parliament is not “sovereign” - it is governed by another Parliament (UK Parliament) Acts of the Scottish Parliament can be challenged in courts by means of judicial review and declared invalid Reserved powers are those found in Schedule 5 of the 1998 Act Reserved areas include the constitution, foreign affairs, economic policy, immigration, defence… The Scottish Parliament can also delegate secondary law-making powers to members of the Scottish Government For example Smoking, Health and Social Care (Scotland) Act 2005 s 43(3) Under this The Smoking, Health and Social Care (Scotland) Act 2005 (Commencement No. 1) Order 2005 was made. This is a SSI – a Scottish Statutory Instrument It provided that the ban on smoking in public places entered into force 26 March 2006 at 6.00 am