The Lands Tribunal for Scotland: Law & Practice

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Although this is a fairly lengthy work, at 1, pages, the volume of topics discussed does occasionally mean that some sections are quite brief.

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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.

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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. Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom.

Some legislation passed by the pre Parliament of Scotland is still also valid. 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 law under the Treaties of the European Union , the requirements of the European Convention on Human Rights entered into by members of the Council of Europe 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 Examples of differences between the jurisdictions include the age of legal capacity 16 years old in Scotland but 18 years old in England and Wales , [10] [11] and the fact that equity was never a distinct branch of Scots law.

There are also differences in the terminology used between the jurisdictions. For example, in Scotland there are no magistrates' courts or Crown Court , but there are justice of the peace courts , sheriff courts and the College of Justice.

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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 custom , feudal law , canon law , civilian ius 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. 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.

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. From the 14th century we have surviving examples of early Scottish legal literature, such as the Regiam Majestatem on procedure at the royal courts and the Quoniam Attachiamenta on procedure at the baron courts.

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. In , 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 became the College of Justice.

Under the terms of the Act of Union, Scotland retained its own systems of law, education and Church Church of Scotland , Presbyterian polity , 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 to the House of Lords now, by appeal to the new Supreme Court of the United Kingdom brought further English influence.

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  7. 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 such as the Sale of Goods Act 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.

    An early Scottish legal compilation, Regiam Majestatem , was based heavily on Glanvill 's English law treatise , although it also contains elements of civil law , feudal law, canon law, customary law and native Scots statutes. Although there was some indirect Roman-law influence on Scots law, via medieval ius commune and canon law used in the church courts , the direct influence of Roman law was slight up until around the midth century.

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    Since the Acts of Union , Scotland has shared a legislature with the rest of the United Kingdom. Scotland retained a fundamentally different legal system from that of England and Wales , but the Union brought English influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaties of the European Union , the requirements of the European Convention on Human Rights entered into by members of the Council of Europe and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act The Parliament of the United Kingdom has the power to pass statutes on any issue for Scotland, although under the Sewel convention it will not do so in devolved matters without the Scottish Parliament 's consent.

    Statutes must receive Royal Assent from the Queen before becoming law , however this is now only a formal procedure and is automatic. This delegated legislation has legal effect in Scotland so far as the specific provisions of the statutory instrument are duly authorised by the powers of the Act, a question which can be subjected to judicial review.

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    The Scottish Parliament is a devolved unicameral legislature that has the power to pass statutes only affecting Scotland on matters within its legislative competence. Legislation passed by the pre Parliament of Scotland still has legal effect in Scotland, though the number of statutes that have not been repealed is limited. Examples include the Royal Mines Act , which makes gold and silver mines the property of the Queen , and the Leases Act , which is still relied on today in property law cases. The European Parliament and Council of the European Union also have the power to create legislation which will have direct effect in Scotland in a range of matters specified under the Treaty on the Functioning of the European Union.

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    European legislation will be annulled if it is contrary to the Treaties of the European Union or their spirit, is ultra vires or proper procedures in its creation were not followed. Legislation which forms part of the law of Scotland should not be confused with a civil code as it does not attempt to comprehensively detail the law.

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    Legislation forms only one of a number of sources. Common law is an important legal source in Scotland, especially in criminal law where a large body of legal precedent has been developed, so that many crimes, such as murder, are not codified. The common law of Scotland should not be confused with the common law of England , which has different historical roots. The influence that English-trained judges have had on the common law of Scotland through rulings of the Supreme Court of the United Kingdom and formerly the House of Lords has been at times considerable, especially in areas of law where conformity was required across the United Kingdom for pragmatic reasons.

    This has resulted in rulings with strained interpretations of the common law of Scotland, such as Smith v Bank of Scotland. A number of works by academic authors, called institutional writers , have been identified as formal sources of law in Scotland since at least the 19th century. The exact list of authors and works, and whether it can be added to, is a matter of controversy. Some commentators [56] would also consider the following works to be included:. The recognition of the authority of the institutional writers was gradual and developed with the significance in the 19th century of stare decisis.

    The view of University of Edinburgh Professor Sir Thomas Smith was, "the authority of an institutional writer is approximately equal to that of a decision by a Division of the Inner House of the Court of Session". If you need advice or representation on a property litigation matter, fill in our contact form or call us: Edinburgh Wick At BBM, we always seek to minimise exposure to risk and our expert lawyers are experienced in implementing sound compliance management procedures, conducting internal audits and defending complex criminal and regulatory charges.

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