Introduction

This is the first of a series of posts on Scots law, a subject in which I recently completed an undergraduate degree and will soon begin a postgraduate diploma to enable me to practise as a solicitor. The series comes at the request of Camilla, who asked me to explain the difference between Scots law and English law. Unfortunately, this is the wrong question, so I will first explain why the question as framed cannot be answered, then suggest a better question, and finally answer it.

It is often supposed, by people both within and outside the UK, and even in Scotland, that Scots law (if they know it exists at all) is basically the same as English law, but with a few slight local variations such as not being allowed to buy alcohol in shops after 10pm, and sometimes using different words for the same thing (claimant/pursuer, barrister/advocate, tomayto/tomahto...) . Some may even think that Scots law as a separate entity began in 1999 when the devolved Scottish Parliament was set up. In fact, nothing could be further from the truth. Scots law is as fundamentally different from English as English law is from Russian.

When I say this, I of course do not mean that the same set of facts will not often yield the same basic result. We would all be very surprised to find anywhere in the world a legal system which did not punish murderers and thieves, did not recognise the parent-child relationship, or had no concept resembling marriage. What I mean is that you should not approach the subject expecting things to work in basically the same way, and then be mildly surprised when you find a difference. You should instead remark on the occasions when things are the same, just as you would when comparing your own legal system with one which has no common origins with it. Because despite their geographical proximity, the origins of Scots and English law could hardly be more different. Such similarities as do exist (and there are many, for reasons I will explore later) are generally superficial, like two houses built of different materials but painted the same colour. Although in the case of Scots law, it might be more accurate to say that it has had a porch stuck on the front which is identical to that of the house next door, but does not match the rest this house at all. To explain what I mean, we need a brief history lesson...

History of Scots law: before 1707

Before the Union of 1707, England and Scotland were two entirely separate countries, fairly often at war with one another, or at least not on speaking terms. This meant that two of the greatest centres of learning in Europe, the Universities of Oxford and Cambridge, were totally inaccessible to Scots. At times when the two countries were at war, a Scot who crossed the border would be an enemy alien, and even in times of peace, nobody could get a degree from Oxford or Cambridge unless they joined the Church of England, which would not have appealed to many Scots. So Scotsmen who wanted more learning than they could get at home had to go to the continent. In law schools in France, Italy and the Netherlands, the big thing was Roman law, specifically the Corpus Juris Civilis. This was basically a huge encyclopaedia of second-century expert opinions and legislation, collated and given the force of law in the sixth century by the Byzantine Emperor Justinian, and rediscovered by Europeans to great excitement in about 1070. The Roman jurists were very thorough, so if you had a novel and tricky problem, the Romans had probably already thought it through and come up with a very sensible solution. So in countries where Roman law was studied, judges often used it – not slavishly, but where there was a need – thereby saving themselves from having to reinvent the wheel. Over time, some principles of Roman law became established in and blended with the legal systems of continental Europe; and of Scotland too, as most of our lawyers and judges had studied on the continent before coming home to practise. The Scottish legal profession so highly regarded Roman law that to become an advocate in 1700, you had to pass an oral exam in Roman law (in Latin, of course), and you only learned Scots law after admission by reading Stair’s Institutions of the Law of Scotland!

The English, meanwhile, were getting along quite happily by themselves, giving comparatively little thought to what was going on in continental universities. They solved most of their legal problems without any reference to the Roman jurists, and were so individualistic that they even split their legal system in two, apparently by accident.

With all this in mind, it’s probably a little easier to imagine why a Scots lawyer sitting in on a case in England, or vice versa, would probably have no idea what was going on. Indeed, in 1607 the great English judge Sir Edward Coke (pronounced “Cook”) had to tell King James VI/I, an enthusiast for natural law who had recently become king of England as well as Scotland, that he could not judge English cases:



In 1607 it was English law that was being subjected to unwanted interference from a Scotsman who didn’t know what he was doing. One hundred years later, the tables turned.

History of Scots law: after 1707

James VI of Scots and I of England wanted to unify the two countries straight away after succeeding to the English throne in 1603, and started calling himself “King of Great Britain” to try and get people used to the idea. But his subjects in both countries were far less keen, and it was 104 years before it happened. (When it did, the reason was basically that Scotland had bankrupted itself by investing all its money in a new colony in Panama, which was promptly laid waste by malaria). Under the terms of the Treaty of Union, the two nations’ parliaments merged, as did the two crowns which for over a century had rested on the same head, but their legal systems and court structures remained distinct: some very specific guarantees were put into the Acts of Union to make sure that Scottish cases were not heard by English judges. They were probably thinking about what happened to Wales in 1536. (Hint: the name of the biggest jurisdiction in the UK is “England & Wales”.)

The result of this was quite an unusual state of affairs, which is essentially the same today. At the level of international law, only the United Kingdom exists – Scotland cannot sign treaties or international conventions. But internally to the UK, they are quite simply different countries. No court order from one country has any authority in the other. The super-injunctions obtained by Trafigura and Ryan Giggs had no force in Scotland (despite being titled “injunctions contra mundum” – against the world), and in both cases Scottish newspapers published the protected information with perfect impunity. If a question of Scots law comes up in an English case, or vice versa, it is treated as a matter of foreign law, which means you have to lead evidence to prove what it is, since the judge doesn’t know. (This makes things awkward when other countries’ choice of law rules say that the dispute should be decided by the “law of the nationality” of one party, since there is no such thing as UK law, nor English or Scottish nationality.) Despite this, the legislative body with authority to change the law is a unified Parliament for both countries, with representatives from both (and, of course, from Northern Ireland, which I have been ignoring so far for simplicity’s sake).

Since the Union, characteristics of English law have infiltrated Scots law in two ways. The first is the obvious way: through legislation. Ideally, even when making a change in the law which applies to both countries, Parliament would draft separate Acts for England and Scotland, or at least keep the provisions entirely separate in different parts of the same Act. In practice, however, this has not always happened. Instead, one frequently finds legislation written in English terminology, with an “application to Scotland” section tacked on at the very end, saying that certain provisions do or do not apply in Scotland, and that throughout the Act a Scottish term is to be substituted for the English one. This does not always work, as the draftsmen can forget things, and even when they do it properly it makes the legislation very hard to read. And as anyone who knows more than one language knows, direct translation of individual terms can lead to inaccuracies. An example of things going spectacularly wrong through sheer inattention is the case of Wan Ping Nam v Minister of Justice of the German Federal Republic (1972). Also, laws can be made which “go against the grain” and sit uneasily with existing overarching principles of Scots law, while being perhaps in England the most natural way to achieve the desired end. The best example is probably the floating charge: in 1951, a judge ruled that this was “utterly repugnant to the principles of Scots law”; ten years later, Parliament passed the Companies (Floating Charges) (Scotland) Act 1961.

The second method of infiltration was somewhat more controversial when it began, though it has now been long accepted. Before the Union, litigants in civil cases (i.e. disputes between private citizens, or those between individuals and the government of a non-criminal nature) had been able, if they were dissatisfied with the decision of the highest court, the Court of Session, to appeal to the Parliament of Scotland for a remedy. When that Parliament was abolished, they went instead, quite naturally, to its replacement in London. The House of Lords is one of the two Houses of Parliament, and it had been hearing English appeals since 1399, so that was where they went.

In the first such case, Greenshields v Magistrates of Edinburgh (1710), it was argued that the House of Lords hearing Scottish appeals contravened Article XIX of the Treaty of Union, which forbids certain named English courts “or any other court in Westminster-hall” from “cognoscing” Scottish cases. (This argument has re-arisen recently due to controversy about criminal appeals in the Supreme Court). However, the House of Lords is not in Westminster Hall – that is a different room in the same building complex – and since the admission of Scottish members it was not only an English court, but also knew Scots law (in theory at least). So it could be an English or a Scottish court depending on where the case before it had originated. But the House of Lords never heard Scottish criminal appeals, although it had heard English ones for centuries, because the Parliament of Scotland had not either – for these, the end of the road was in Edinburgh. This situation continued until 2009, when the House of Lords stopped being a court and the judges moved across the road to the new Supreme Court, though this was really no more than a change of name.

(At the end of the day, if the House of Lords says it is allowed to hear appeals, who is going to tell it that it can’t? To what extent their Lordships were swayed by the nature of the dispute in Greenshields – a clergyman had been imprisoned for using the English prayer-book in a Scottish church – we will never know.)

Of course, officially “knowing” Scots law according to a legal fiction is very different from actually knowing anything about it. Out of twelve Law Lords (or, since 2009, Supreme Court Justices) only two are Scottish. Since at least five sit for each case, they are always in the minority. These days the English judges (and the Northern Irish one) usually defer to their Scottish brethren, but it was not always so. More than one rule of law has been imported into Scots law by their Lordships after all the Scottish courts below have ruled the other way. The most famous howler was committed by Lord Cranworth in Bartonshill Coal Co v Reid (1858):



The answer, of course, is that it wasn’t, until he decided it was. This dictum still makes Scots lawyers shudder with revulsion. (To make us feel better, we can remember what Lord Chancellor Erskine once said, with admirable honesty: “I know something of the law, but of Scotch law I am as ignorant as a native of Mexico”.)

The right question

Hopefully this post has made it clear why Scottish lawyers find it so exasperating to hear their law so often compared to English law. It has more in common with the legal systems of South Africa, Quebec and Louisiana – all of these are also what is termed “mixed legal systems”, showing influence of both continental-style Roman law and English law due to their hybrid colonial history. So rather than asking “What is the difference between Scots law and English law”, one should say “Tell me something about Scots law”. There are plenty of things that make it distinctive, not just from English law but from all the other legal systems in the world, and you will find out what these are in the rest of the posts in this series.