66-732: The Laws of Scotland: Stair Memorial Encyclopaedia (commonly referred to as the Stair Memorial Encyclopaedia ) is an encyclopaedia of law in Scotland . It incorporates law derived from every source and, while concentrating on the specialities of Scots law, it also covers law common to the whole of the United Kingdom . Each statement of law is supported by citation of authority, and there are references to sources of further information, both primary and secondary. The Encyclopaedia may be cited with approval before
132-565: 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
198-701: 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 law under the Treaties of the European Union , the requirements of the European Convention on Human Rights (entered into by members of
264-673: A "registered medical professional". As to the mens rea for murder, see section 8 of the Criminal Justice Act (Northern Ireland) 1966 . The following partial defences reduce murder to manslaughter: See also section 6 of the Criminal Justice Act (Northern Ireland) 1966. The common law defence of provocation was abolished and section 7 of that Act repealed by section 56 of the Coroners and Justice Act 2009 . The Infanticide Act (Northern Ireland) 1939 provides
330-826: A decision in 2015 that Northern Ireland's abortion regime violated Article 8 of the European Convention on Human Rights as it failed to allow for termination in cases of fatal foetal abnormality or when pregnancy was due to a sexual offence. Abortion was decriminalised in Northern Ireland when the relevant sections of the Offences against the Person Act 1861 were repealed in October 2019. The Abortion (Northern Ireland) Regulations 2020 commenced on 31 March 2020, authorising abortions to be carried out by
396-548: A distinction between excepted matters, reserved matters and other matters (which are transferred i.e. they fall within the NI Assembly's competence). The Northern Ireland Act 1998 functions as a constitution for Northern Ireland. Section 24(5) of the Interpretation Act 1978 now reads: In this section "Northern Ireland legislation" means— Paragraphs (d) to (g) were substituted by paragraph 3 of Schedule 13 to
462-699: A large body of legal precedent has been developed, so that many crimes, such as murder, are not codified . Sources of common law in Scotland are the decisions of the Scottish courts and certain rulings of the Supreme Court of the United Kingdom (including its predecessor the House of Lords ). The degree to which decisions of the Supreme Court are binding on Scottish courts in civil matters
528-682: A partial defence which reduces murder to infanticide. The penalty for murder is provided by section 1(1) of the Northern Ireland (Emergency Provisions) Act 1973 . The Sexual Offences (Northern Ireland) Order 2008 reformed the law of sex crime in Northern Ireland similarly to how the Sexual Offences Act 2003 did in England and Wales. Several of these areas of law, such as treason, defence and foreign relations, are reserved or excepted matters , meaning only Westminster has
594-707: A range of undergraduate and postgraduate law degrees: There are specialist research centres in the two universities: Professional legal education is offered by the Institute of Professional Legal Studies at Queen's University Belfast and the Graduate School for Professional Legal Education at Ulster University. The 1967 Abortion Act does not apply in Northern Ireland. This situation led the Northern Ireland Human Rights Commission to take judicial proceedings which led to
660-521: A relatively sophisticated early Irish legal system, the practice of which was only finally wiped out during the Cromwellian conquest of Ireland . The Brehon laws were a civil legal system only – there was no criminal law. Acts that would today be considered criminal were then dealt with in a similar manner to tort law today. A perpetrator would have to compensate the victim, rather than having a punishment, such as imprisonment, imposed upon him. Ireland
726-617: Is Scotland’s supreme criminal court and deals with the most serious crime. The Court of Session is the supreme civil court. 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
SECTION 10
#1732779646166792-433: Is a matter of controversy. The generally accepted list of institutional works are: Some commentators would also consider the following works to be included: Northern Irish law The law of Northern Ireland is the legal system of statute and common law operating in Northern Ireland since the partition of Ireland established Northern Ireland as a distinct jurisdiction in 1921. Before 1921, Northern Ireland
858-1190: Is also available as a searchable electronic archive on a paid subscription basis. This article about an encyclopedia is a stub . You can help Misplaced Pages by expanding it . This article related to law in Scotland is a stub . You can help Misplaced Pages by expanding it . Law in Scotland Charles III William , Duke of Rothesay Swinney government The Rt Hon John Swinney MSP The Rt Hon John Swinney MSP Kate Forbes MSP Sixth session Alison Johnstone MSP Angela Constance MSP Dorothy Bain KC The Rt Hon Lord Carloway KC PC United Kingdom Parliament elections European Parliament elections Local elections Referendums Starmer ministry The Rt Hon Keir Starmer MP The Rt Hon Ian Murray MP Scots law ( Scottish Gaelic : Lagh na h-Alba )
924-437: Is also the country’s death investigation service, and is responsible for investigating all suspicious, sudden or unexplained deaths. Unlike England and Wales Scotland has no coronial system to investigate deaths. Instead a Fatal Accident Inquiry (FAI), 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
990-451: Is controversial, especially where those decisions relate to cases brought from other legal jurisdictions; however, decisions of the Supreme Court in appeals from Scotland are considered binding precedent . In criminal cases the highest appellate court is the Court of Justiciary and so the common law related to criminal law in Scotland has been largely developed only in Scotland. Rulings of
1056-418: Is derived from primary legislation. Parliament cannot amend secondary legislation, but may reject or approve it. Secondary legislation is drafted by a branch of government: Secondary legislation is called a statutory instrument when drafted by a Westminster department and a statutory rule when drafted by an Assembly department. Previously statutory rules were titled "statutory rules and orders". In 1979, there
1122-554: 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. 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
1188-602: Is passed by the Scottish Parliament on all areas of devolved responsibility, and the United Kingdom Parliament 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
1254-467: 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
1320-741: 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 Act 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
1386-644: 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 1998 . The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2020 was passed by the Scottish Parliament in December 2020. It received royal assent on 29 January 2021 and came into operation on
SECTION 20
#17327796461661452-534: The European Court of Human Rights and the Court of Justice of the European Union also contribute to the common law in the interpretation of the European Convention on Human Rights and European law respectively. The common law of Scotland should not be confused with the common law of England , which has different historical roots. The historical roots of the common law of Scotland are the customary laws of
1518-537: The Human Rights Act 1998 and European law , otherwise the Court of Session or High Court of Justiciary have the authority to strike down the legislation as ultra vires . There have been a number of high-profile examples of challenges to Scottish Parliament legislation on these grounds, including against the Protection of Wild Mammals (Scotland) Act 2002 where an interest group unsuccessfully claimed
1584-514: The Palace of Westminster , London . 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
1650-633: The Parliament of Great Britain , extended to Ireland under Poynings' Law between 1494 and 1782. The Northern Ireland Parliament was prorogued in 1972; from then until the establishment of the Northern Ireland Assembly following the Good Friday Agreement , the primary method of making legislation for Northern Ireland was by means of orders in council under the Northern Ireland (Temporary Provisions) Act 1972. A number of important legislative measures were adopted using
1716-622: The Parliament of the United Kingdom (hereafter "Westminster") and the Northern Ireland Assembly ("the Assembly"). Legislation created by the Parliament of Northern Ireland , which operated from 1921 to 1972, is still in effect. Westminster may still legislate on any Northern Ireland matter. In contrast the Assembly cannot legislate on "Excepted" matters nor "Reserved" matters. The Assembly may legislate on devolved ("Transferred") matters and then Westminster plays no part in
1782-466: The Parliament of the United Kingdom is not subject to revocation by the courts as the Parliament is said to have supreme legal authority; however, application of legislation is subject to judicial review and also in practice, the Parliament will tend not to create legislation which contradicts the Human Rights Act 1998 or European law , although it is technically free to do so. The degree to which
1848-548: The Scotland Act 1998 and the European Communities Act 1972 have special status in the law of Scotland. Modern statutes will specify that they apply to Scotland and may also include special wording to take into consideration unique elements of the legal system. Statutes must receive royal assent from the King before becoming law , however this is now only a formal procedure and is automatic. Legislation of
1914-483: 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
1980-417: The church courts , the direct influence of Roman law was slight up until around the mid-15th century. After this time, civilian ius commune was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and civil law was in this way partially received in subsidium into Scots law. Since the Acts of Union 1707 , Scotland has shared a legislature with
2046-588: The partition of Ireland in 1921 and the Acts of Union in 1801. Following the formation of the Irish Free State (which later became the Republic of Ireland ), Northern Ireland became its own devolved legal jurisdiction within the United Kingdom. The sources of Northern Irish law reflect Irish history and the various parliaments whose law affected the region down through the ages. The Brehon Laws were
Stair Memorial Encyclopaedia - Misplaced Pages Continue
2112-565: 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). 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
2178-550: The Civil Authorities (Special Powers) Act (Northern Ireland) 1922, commonly called the Special Powers Act . Following the outbreak of violence in the 1960s and 1970s, the Northern Ireland (Emergency Provisions) Act 1973 introduced juryless Diplock courts to try terrorism related offences. The Terrorism Act 2000 retains special provisions for Northern Ireland in respect of anti-terrorism law, and retains
2244-579: 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
2310-713: The Northern Ireland Act 1998. Until 2 December 1999, paragraph 7(2) of Schedule 2 to the Northern Ireland Act 1982 provided that Orders in Council under section 38(1)(b) of the Northern Ireland Constitution Act 1973 were Northern Ireland legislation for the purposes of section 24 of the Interpretation Act 1978. Section 5 of the Interpretation Act 1978 provides that in any Act, unless the contrary intention appears,
2376-509: 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 1893 ). 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
2442-633: The Parliament has surrendered this sovereignty is a matter of controversy with arguments generally concerning what the relationship should be between the United Kingdom and the European Union . Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation in the form of statutory instruments . This delegated legislation has legal effect in Scotland so far as
2508-857: The School of Law at Queen's University Belfast . According to the Bodleian Library at Oxford University : "There are two main series of law reports for Northern Ireland: the Northern Ireland Law Reports (NI), which began in 1925; and the Northern Ireland Judgments Bulletin (NIJB), previously known as the Blue Books, which was first published in 1970". The Northern Ireland Statutes Revised are printed editions of NI statutes, revised. Both of Northern Ireland's universities offer
2574-634: The UK Parliament passed the Fair Employment (Northern Ireland) Act which prohibited religious and political discrimination in employment. The Fair Employment (Northern Ireland) Act 1989 creates a system to monitor the religious composition of the workforce so as to promote fair participation. In 1998 the Northern Ireland Act 1998 introduced a statutory duty on designated public authorities to promote equality of opportunity on
2640-550: The United Kingdom that apply to Northern Ireland and Acts of the Northern Ireland Assembly , as well as statutory instruments made by departments of the Northern Ireland Executive and the UK Government , Acts of the Parliament of Northern Ireland passed between 1921 and 1972, Acts of the Parliament of Ireland made before the Act of Union 1800 , and Acts of the Parliament of England , and of
2706-522: The ban on fox hunting violated their human rights. Legislation passed by the Scottish Parliament also requires royal assent which, like with the Parliament of the United Kingdom , is automatically granted. Legislation passed by the pre-1707 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 1424 , which makes gold and silver mines
Stair Memorial Encyclopaedia - Misplaced Pages Continue
2772-633: 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
2838-447: The courts. In 1981, three hundred years after James Dalrymple, 1st Viscount of Stair 's first publication of his original work, a new encyclopaedia of Scots law was commissioned. The complete set consists of over 130 titles in 25 volumes and Reissue binders. It covers the whole spectrum of Scots law, from Administrative Law , through Criminal Law , Obligations and Property , to Wills and Succession . Stair Memorial Encyclopaedia
2904-476: The different cultures which inhabited the region, which were mixed together with feudal concepts by the Scottish Kings to form a distinct common law. 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
2970-482: The enactment of such legislation. Acts of the Northern Ireland Parliament are distinguished from Westminster Acts by the position of the phrase "Northern Ireland" inside their title. The Privy Council legislates on Reserved matters through Orders in Council. Technically speaking these are secondary, or delegated legislation, and they are therefore given UK Statutory Instrument numbers. Orders in Council are however used as primary legislation. All secondary legislation
3036-486: 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
3102-415: The establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998 . 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. The Human Rights Act 1998 ,
3168-400: 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 (now, by appeal to the new Supreme Court of the United Kingdom ) brought further English influence. Acts of
3234-452: The expression "Northern Ireland legislation" is to be construed according to Schedule 1 of that Act, which contains the following paragraph: "Northern Ireland legislation" has the meaning assigned by section 24(5) of this Act. [1 January 1979] The preceding paragraph applies, so far as applicable, to Acts passed on or after 1 January 1979. Primary Legislation is made by the legislative branch of government. In Northern Ireland this includes
3300-411: The jurisdictions include the age of legal capacity (16 years old in Scotland but 18 years old in England and Wales), and the fact that equity was never a distinct branch of Scots law. Some examples in criminal law include: In Scotland there are justice of the peace courts and sheriff courts , rather than magistrates' courts or Crown Court as in England and Wales. The High Court of Justiciary
3366-427: The order in council procedure: this included the Criminal Evidence (Northern Ireland) Order 1988 restricting the right to silence, the Fair Employment and Treatment Order (Northern Ireland) 1998 on religious and political discrimination. The expression " Northern Ireland legislation " is defined by statute. The Northern Ireland Act 1998 establishes the legislative competence of the Northern Ireland Assembly. It creates
SECTION 50
#17327796461663432-446: The possibility to try certain offences without a jury. The Defamation Act 2013 does not apply in Northern Ireland. This protections which this Act provides for free expression (e.g. the public interest defence in section 4) do not therefore apply in Northern Ireland. Northern Irish courts have issued a small number of super-injunctions . The Government of Ireland Act 1920 prohibited religious discrimination in legislation. In 1976
3498-543: The power to legislate for them. The Criminal Justice and Immigration Act 2008 abolished the offence of blasphemy in England and Wales; this measure did not extend to Northern Ireland. Participatory offences include aiding, abetting, counselling, or procuring the act of some crime or conspiracy. It also includes being an accomplice to criminal behaviour. Due to the history of political violence in Northern Ireland, there have been distinctive developments in Northern Irish criminal law and anti-terrorism procedures. These date to
3564-409: The property of the King , and the Leases Act 1449 , which is still relied on today in property law cases. 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. Legislation forms only one of a number of sources. Common law is an important legal source in Scotland, especially in criminal law where
3630-400: 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
3696-407: 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
3762-411: 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
3828-647: The same day. It provides powers for the Scottish Ministers to keep devolved Scots law in alignment with future EU Law . 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
3894-430: 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
3960-399: 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. 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 Scottish Parliament must also comply with
4026-444: Was a severe shortage of textbooks and of works of authority, such as annotated statutes, law reports and rules of court , because the potential readership of any legal work, no matter how general, was so small that publication was not commercially viable. The only periodical dealing with the law of Northern Ireland was the Northern Ireland Legal Quarterly (NILQ), a peer-reviewed quarterly journal published since 1936, published at
SECTION 60
#17327796461664092-457: 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
4158-517: Was part of the same legal system as the rest of Ireland . For the purposes of private international law , the United Kingdom is divided into three distinct legal jurisdictions: England and Wales ; Northern Ireland and Scotland . Northern Ireland is a common law jurisdiction. Although its common law is similar to that in England and Wales, and partially derives from the same sources, there are some important differences in law and procedure. Northern Irish law has its roots in Irish common law before
4224-425: 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,
4290-405: 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
4356-412: Was the subject of the first extension of England's common law legal system outside England. While in England the creation of the common law was largely the result of the assimilation of existing customary law, in Ireland the common law was imported from England, gradually supplanting the customary law of the Irish. The current statute law of Northern Ireland comprises those Acts of the Parliament of
#165834