Scots law
Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom. Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland and Scots law is passed by the Scottish Parliament on all areas of devolved responsibility, and the Parliament of the United Kingdom on reserved matters. Some legislation passed by the pre-1707 Parliament of Scotland is still also valid.
Early Scots law before the 12th century consisted of the different legal traditions of the various cultural groups who inhabited the country at the time, the Gaels in most of the country, with the Britons and Anglo-Saxons in some districts south of the Forth and with the Norse in the islands and north of the River Oykel. The introduction of feudalism from the 12th century and the expansion of the Kingdom of Scotland established the modern roots of Scots law, which was gradually influenced by other, especially Anglo-Norman and continental legal traditions. Although there was some indirect Roman law influence on Scots law, the direct influence of Roman law was slight up until around the 15th century. After this time, Roman law was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and Roman law was in this way partially received into Scots law.
Since the Union with England Act 1707, Scotland has shared a legislature with England and Wales. Scotland retained a fundamentally different legal system from that south of the border, but the Union exerted English influence upon Scots law. Since the UK joined the European Union, Scots law has also been affected by European Union law under the Treaties of the European Union, the requirements of the European Convention on Human Rights and the creation of the devolved Scottish Parliament which may pass legislation within all areas not reserved to Westminster, as detailed by the Scotland Act 1998.
The UK Withdrawal from the European Union Act 2020 was passed by the Scottish Parliament in December 2020. It received royal assent on 29 January 2021 and came into operation on the same day. It provides powers for the Scottish Ministers to keep devolved Scots law in alignment with future EU law.
Scotland as a distinct jurisdiction
The United Kingdom, judicially, consists of three jurisdictions: England and Wales, Scotland, and Northern Ireland. There are important differences among Scots law, English law and Northern Irish law in areas such as property law, criminal law, trust law, inheritance law, evidence law and family law while there are greater similarities in areas of UK-wide interest such as commercial law, consumer rights, taxation, employment law and health and safety regulations.Examples of differences among the jurisdictions include the age of legal capacity, and the fact that equity was never a distinct branch of Scots law. Some examples in criminal law include:
- The use of 15-member juries for criminal trials in Scotland who always decide by simple majority.
- The accused in a criminal trial does not have the right to elect between a judge or jury trial.
- Historically, judges and juries of criminal trials had the "third verdict" of not proven available to them though this was abolished on 1 January 2026.
- The requirement for corroborating evidence means at least two independent sources of evidence are required in support of each crucial fact before an accused can be convicted.
The majority of crime is prosecuted by The Crown Office and Procurator Fiscal Service, which provides the independent public prosecution service for Scotland similar to the Crown Prosecution Service in England and Wales and the Public Prosecution Service in Northern Ireland.
The Crown Office and Procurator Fiscal Service is also the country’s death investigation service, and is responsible for investigating all suspicious, sudden or unexplained deaths.
Unlike England and Wales or Northern Ireland, Scotland has no coronial system to investigate deaths. Instead a fatal accident inquiry, presided over by a judge, may be established to determine the cause of a death and any steps to prevent deaths in similar circumstances.
Except in circumstances where an FAI is mandatory, such as deaths in prison or in police custody, the Crown Office will determine whether an FAI would be in the public interest.
Terminology
Under Scots law and in the Scottish courts, the person or body making a claim in a civil action is called a "pursuer" and the opposing party is called a "defender". An article produced and lodged as evidence in court is called a "production", whereas in England and Wales it would be referred to as an "exhibit".History
Scots law can be traced to its early beginnings as a number of different custom systems among Scotland's early cultures to its modern role as one of the three legal jurisdictions of the United Kingdom. The various historic sources of Scots law, including customary law, feudal law, canon law, civil Jus commune and English law have created a hybrid or mixed legal system.The nature of Scots law before the 12th century is largely speculative, but is likely to have been a mixture of different legal traditions representing the different cultures inhabiting the land at the time, including Gaelic, Welsh, Norse and Anglo-Saxon customs. There is evidence to suggest that as late as the 17th century marriage laws in the Highlands and Islands still reflected Gaelic custom, contrary to Catholic religious principles. The formation of the Kingdom of Scotland and its subjugation of the surrounding cultures, completed by the Battle of Carham, established what are approximately the boundaries of contemporary mainland Scotland. The Outer Hebrides were added after the Battle of Largs in 1263, and the Northern Isles were acquired in 1469, completing what is today the legal jurisdiction of Scotland.
From the 12th century feudalism was gradually introduced to Scotland and established feudal land tenure over many parts of the south and east, which eventually spread northward. As feudalism began to develop in Scotland early court systems began to develop, including early forms of sheriff courts. Under Robert the Bruce the importance of the Parliament of Scotland grew as he called parliaments more frequently, and its composition shifted to include more representation from the burghs and lesser landowners. In 1399 a General Council established that the King should hold a parliament at least once a year for the next three years so "that his subjects are served by the law". In 1318 a parliament at Scone enacted a code of law that drew upon older practices, but it was also dominated by current events and focused on military matters and the conduct of the war of Scottish Independence.
From the 14th century there are surviving examples of early Scottish legal literature, such as the Regiam Majestatem and the Quoniam Attachiamenta. Both of these important texts, as they were copied, had provisions from Roman law and the ius commune inserted or developed, demonstrating the influence which both these sources had on Scots law. From the reign of King James I to King James V the beginnings of a legal profession began to develop and the administration of criminal and civil justice was centralised. The Parliament of Scotland was normally called on an annual basis during this period and its membership was further defined. The evolution of the modern Court of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.
The 1688 Glorious Revolution and the Claim of Right in 1689 established parliamentary sovereignty in Scotland, and the Acts of Union 1707 merged the Kingdom of Scotland and the Kingdom of England to form the new Kingdom of Great Britain. Article 19 of the Treaty of Union confirmed the continuing authority of the College of Justice, Court of Session and Court of Justiciary in Scotland. Article 3, however, merged the Estates of Scotland with the Parliament of England to form the Parliament of Great Britain, with its seat in the Palace of Westminster, London. Under the terms of the Act of Union, Scotland retained its own systems of law, education and Church, separately from the rest of the country.
The Parliament of Great Britain otherwise was not restricted in altering laws concerning public right, policy and civil government, but concerning private right, only alterations for the evident utility of the subjects within Scotland were permitted. The Scottish Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to London and the introduction of appeal in civil but not criminal cases to the House of Lords brought further English influence. Acts of the Parliament began to create unified legal statutes applying in both England and Scotland, particularly when conformity was seen as necessary for pragmatic reasons. Appeal decisions by English judges raised concerns about this appeal to a foreign system, and in the late 19th century Acts allowed for the appointment of Scottish Lords of Appeal in Ordinary. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords. Today the Supreme Court of the United Kingdom usually has a minimum of two Scottish justices to ensure that some Scottish experience is brought to bear on Scottish appeals.
Scots law has continued to change and develop in the 20th century, with the most significant change coming under devolution and the reformation of the Scottish Parliament.