Scots Law: The Modern Period

The two most outstanding features in the development of Scots law since 1800 have been:

• the influence of English law; and
• the increase in statutory law.

The entry of the United Kingdom to the European Communities has, since 1973, opened up the way for a further important feature and, in particular, how it has affected the development of the law in Scotland.

English law has been the principle foreign influence on Scots law since 1800. That influence has been exerted mainly through two channels, legislation and decisions reached by the House of Lords.

Parliament may, and some times does, pass Acts which apply only to England. Devolved matters attributed to Scotland under the Scotland Act does give Scottish Ministers powers in creating laws but the area of contention remains matters reserved by Westminster. This article is concerned how Scots law has been influenced by factors since 1800.

Ladies and gentlemen, with the ever increasing number of Acts of Parliament which have accumulated during the modern period, the result has been to make Scots law much more similar to English law than it was at the beginning of the nineteenth century. This was particularly true of those branches of the law, such as commercial and industrial law, which the London parliament had been most active in controlling and reforming throughout the nineteenth and twentieth centuries.

After the Union of the Parliaments in 1707 the House of Lords had become the final court of appeal for Scottish civil cases. This fact alone led to the importation of much English law into Scotland, especially as the doctrine of judicial precedent came to be more strictly applied as part of Scots law.

Considerable dissatisfaction has been expressed by many Scots lawyers with the power which the House of Lords, composed mainly, and sometimes entirely, of judges trained in the Anglo-American school of legal thought, and how that was exerted over the development of the law in Scotland. Readers might like to note that English law is primarily driven by the Anglo-American model. This model is alien to Scotland whose roots of existence extended from Roman and Canonical laws.

Judgements of the Court of Session in Scotland had often been reversed by the House of Lords. There have been, in many cases, displays and confessions of ignorance of Scots law on the part of the English judges. The principles and terms of English law have sometimes wrongly been assumed to be the exact equivalents of those of Scots law.

In the modern period there has been a great increase in the volume of statutory law, which includes, as well as Acts of Parliament, all those detailed rules and regulations made by government departments, local authorities, and other bodies in accordance with powers conferred on them by Parliament. The "common law", that part of the law which is not statutory and which consists of principles and rules developed over the years by decisions of the courts, is now a much smaller part of the whole of Scots law than it was in 1800. Legislative Acts passed by the Westminster Government over the centuries has diluted very much the substance and origins of the law in Scotland. The establishment of Scotland's parliament prior to the millennium, firstly by Donald Dewar, and succeeded by others - has to some extent curbed that dilution from rotting Scots law into almost oblivion. For decades, history clearly shows that the Westminster parliament had attempted in making Scotland a mere region or extension of England.

The Blog Author's support for Scotland's First Minister - Mr Alex Salmond - is well documented throughout this site but, I strongly believe, that the SNP will be able to deliver the long-term objectives it has set-out to do, by making possible the legislative framework for an independent Scotland. In my view it cannot come soon enough. I strongly recommend readers to obtain the Scottish Government's draft proposals for a Referendum, as well as thinking over the details put by our First Minister in the consultative document entailed, 'A National Conversation'. The document is a starting point and inspiration for that conversation, which will be had over the coming weeks and months. It explores areas in which Scotland could take on further responsibilities - such as employment, national finances, or legislation on public safety. The concept of independence is central to the paper.

Parliament is as much about law-making as it is in looking after its citizens. The need for a stronger and more effectual legislative body is, in the view of Nationalists, a pressing argument. Scotland is a country and deserves to be brought back via restitution, particularly as far as the law in concerned is Scotland. The parliament in Edinburgh, in its current form, is not adequate enough. It needs the additional powers, those many areas 'reserved' by Westminster, in securing a better and more prosperous future for Scotland. The SNP are right in seeking that mandate.

Scotland is culturally different and could favourably export with our European neighbours, as an independent nation. At present, British foreign policy dictates what Scotland can and cannot do. This is not in Scotland's best interests. I challenge anyone to suggest otherwise.

Reform of the law is made necessary because of how society changes. Ignorance can tend to be blind to this as people adapt without thinking to a rapidly changing society. But, this doesn't necessarily mean it is favourable or even acceptable to a country that has become use to changes by stealth. A country that is different means it should be afforded autonomy without the fear of interference from elsewhere.

I do not apologise for being a Nationalist, I seek the best outcome for Scotland. I abhor all political measures purported in the name of free markets and strongly refute the repulsive assertions made by Conservatism whether that be the abolition of death taxes or the operation of a free market economy as advocated by Cronies of Thatcherism. Equally, I detest educational policies that do not push hard enough on English language and Mathematics, whether that be in England or elsewhere.

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