Robert Gordon University Aberdeen Law School: Sources of Law Part 1

Sources of Law Part 1 Sources of Law : Where does the law come from? Brief Recap – Topic 2 Big Picture - Topic 3 Overview BREAKOUT Big Picture – Topic 3 Overview Bringing it all Together – Questions and Answers  Sources of Law : Where does the law come...

Sources of Law Part 1 Sources of Law : Where does the law come from? Brief Recap – Topic 2 Big Picture - Topic 3 Overview BREAKOUT Big Picture – Topic 3 Overview Bringing it all Together – Questions and Answers  Sources of Law : Where does the law come from? What do you know so far? Two major classifications – Civil Law legal systems and Common Law systems !Scotland - Mixed or Hybrid Legal System! Why Scotland mixed/hybrid: Pre, 1707, After 1707 Treaty of Union – Gradual Anglicisation Evolution into a Mixed System after 1707 “Modern” influences: Devolution, EU, Human Rights…  Sources of Law Big Picture - Topic 3 Overview 7 October 20 4 24 Formal Sources: Where is the law found? Formal sources of law provide the principles and rules that courts must apply to determine rights, duties, remedies and liabilities The legal system accepts that these rules must come from certain formal sources We are answering the question of “where is the law found?”  Formal Sources of Law 1. Legislation - UK, Scotland (EU previously) 2. Judicial Precedent/Case Law 3. Institutional Writers 4. Custom 5. Equity - nobile officium 6. Other Sources  Formal Sources of Law !REMEMBER! Scotland/The UK has no Written Constitution! Need to locate main sources of law  Legislation 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  Legislation - UK 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 - UK 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  Legislation – UK Primary legislation 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)  Legislation - UK 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  Legislation - UK 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 The best place to consult an Act of Parliament is an updated database, such as Westlaw  Legislation – UK Secondary Legislation 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 Secondary legislation: Bye-laws Aberdeen City Council  Secondary legislation: Bye- laws 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.  Scottish Legislation: Acts of the Scottish Parliament (ASPs) Scottish Parliament Chamber  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  Legislation - Scotland 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…  Secondary Legislation - Scotland 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 Legislation – Summary Legislation is the most important source of law in the UK Source of the majority of the rules that apply within the UK Must be able to find and understand the different forms of legislation UK legislation comes from TWO different sources UK Parliament legislation is the most authoritative source of law within the UK  Topic 3 BREAKOUT Sources of Law Part 1 Judicial Precedent – Case Law Judicial Precedent and the Courts High Court of Justiciary, Edinburgh Judicial Precedent The 2nd most important source of law after legislation is judicial precedent or case law In the absence of legislation it is the highest source of law Scotland is a ‘mixed/hybrid’ legal system – with elements of civil & common law systems – hence use of precedent as a source of law Legislation overrides case law but where there is no Act in force, case law is the highest authority E.g. the War Damages Act 1965 nullified the effects of Burmah Oil Co (Burma Trading) Ltd v. Lord Advocate, 1964 SC (HL) 117 Judicial Precedent An example of the importance of judicial precedent is the crime of murder Has an Act of Parliament ever stated that it is a crime to murder? No. Does this mean you can murder without consequence? No. Why? Because case law states that murder is a crime and defines it. Judicial Precedent Judicial precedent or case law is important because of the principle of stare decisis The ‘the decision stands’ - i.e. prior judicial statement/s must be followed Traditionally an English law concept but now also used in Scots law - adoption of common law traditions after 1707/1710 Lower courts bound to follow a higher court’s decision E.g. With regard to murder, the High Court of Justiciary in its appeal role defined murder which all lower level  Judicial Precedent General principle of judicial precedent – courts are bound by decisions of courts higher up the judicial hierarchy. The highest court for Scotland in civil cases is the UK Supreme Court Its decisions are binding on all other civil courts in Scotland In criminal cases, the highest court for Scotland is the High Court of Justiciary - decisions of which are binding on all other Scottish criminal courts Scottish Court Structure Judicial Precedent Criminal Courts Civil Courts High Court Justiciary - Appeals Supreme Court High Court Ct. of Session (IH) Justiciary - Trials Ct. of Session (OH) Sheriff Appeals Sheriff Appeals Sheriff (Solemn) Sheriff Sheriff (Summary) Justice of the Peace Court Judicial Precedent - Advantages Stare decisis provides legal certainty The law should treat similar situations in the same way but treat different situations differently Ensures fairness and uniform approach Enables lawyers to predict better the outcome of cases and advise clients accordingly of the strengths & weaknesses of their case and how to plead Brings reliability and consistency to the legal system Judges have expertise and learning Judicial Precedent - Disadvantages Judges – not elected but selected Judges – not representative of society they serve Strict enforcement of stare decisis - the retention of bad law S v HM Advocate High Court of Justiciary (Appeal) 1989 High Court of Justiciary overruled previous common law (case law) position that husband could not be prosecuted for the rape of his wife Use of Declaratory power of High Court (rarely  Judicial Precedent: Declaratory power of High Court Khaliq v HMA 1984 High Court used its declaratory power to find guilty a shopkeeper who was selling glue-sniffing kits Power of High Court to declare conduct to be criminal even if has not been previously been considered criminal behaviour Controversial as retrospective and goes against human rights principal of legality Judicial Precedent In applying the law, courts need to establish the legal principle behind the case Donoghue v. Stevenson 1932 The issue of manufacturers’ liability. Mrs Donoghue was bought ginger beer by friend in a café in Paisley She drank the ginger beer and discovered the decomposed remains of a snail in the bottle and then became ill She sued the manufacturers Stevenson in delict and won her case Judicial Precedent: Donoghue v Stevenson (1932) Case established legal principle that manufacturers owe a duty of care to the end-users of their products But principle does not only apply to ginger beer producers who allow snails to fall into bottles Legal principle has been expanded to cover many situations where one party could cause harm to another – “neighbour principle”  Judicial Precedent Rules of precedent Normally decisions of higher courts are binding on lower courts i.e. the rule of law must be followed. If a court is not in the direct hierarchy (e.g. an English court in relation to a Scottish court) the case may be persuasive but not binding Judicial Precedent – Rules of Precedent Rules of precedent A judge need not follow a decision of a lower court The higher court may overrule a decision of a lower court A court may distinguish a precedent – hold that it is not binding in the circumstances. A precedent is distinguished if it is said not to be ‘in point’ A court distinguishes an earlier case where it thinks the facts are not similar to present case Judicial Precedent – Rules of Precedent Rules of precedent Cases can contain two types of statements/rules: Ratio decidendi - the reasoning behind the judgment - why the judge decided in the way he/she did Obiter dicta – important statements made by judge in case which may be useful in the future (eg neighbour principle in Donoughue) The rule (ratio decidendi) is what must be followed in a later case Judicial Precedent – Civil Law v Common Law Civil Law Systems - Based on reasoning from general principles Uses a form of deductive reasoning working from the general to the specific - All humans are mortal (major premise), I am human (minor premise), therefore I am mortal Concerned with policy and rationale as a rule of law Consider Brennan v HM Advocate - As a legal principle, voluntary intoxication was held to be no defence to any crime Common Law Systems - As instances/issues arise a solution is found Adversarial in nature with 2 parties putting forward their legal argument Piecemeal and haphazard v Civil law approach based on legal principles  Topic 3 BREAKOUT  Sources of Law Part 1 - Conclusion Legislation and judicial precedent are the two most important sources of law today in Scotland/the UK Together they form the majority of the legal rules that apply in our legal system It is critical when studying the law to be able to find and understand the forms of legislation and case law which you will come across in all your Law modules