The historical differences between Scottish and English Law, and what it means for Brexit

This week has seen challenges to the prorogation of UK parliament in both Scottish and English courts. Ahead of an appeal in the Supreme Court of the United Kingdom, Professor John Hudson of the University of St Andrews explains why elements of Scots and English law remain distinct to this day…

The Acts of Union was signed in 1706 and 1707, creating the Kingdom of Great Britain. (Photo by The Print Collector/Print Collector/Getty Images)

The 1707 Acts of Union between Scotland and England laid down that “no Alteration be made in Laws which concern private Right except for evident Utility of the Subjects within Scotland”. Large areas of Scots law thereby were to remain distinct from English, and have remained so to this day. Likewise the judicial system was to remain separate. Until this week, many people, particularly in England, would never have heard of Scotland’s ‘Court of Session’. However, the 1707 Acts specify the preservation of that very court by name.

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What is the Scottish Court of Session?

The Court of Session is the highest civil court in Scotland. The separation of jurisdictions between parts of the United Kingdom explains why challenges relating to Brexit have been taking place not just in the Court of Session, but also the High Court in London and the High Court in Belfast. On 17 September 2019, in contrast, it will be to a UK-wide court that the government appeals, the Supreme Court of the United Kingdom. The Supreme Court was established in 2009, taking over the judicial functions of the House of Lords.

How do Scottish and English law differ?

Several specific differences between Scots and English law are well known. The most famous is the existence of three, rather than two, possible verdicts in a Scottish criminal jury trial. The additional one is ‘not proven’. This verdict is an acquittal, but with an acknowledgement of continuing doubt about the innocence of the accused. It originates in juries being asked about individual specific factual allegations, to which they gave a ‘special verdict’ of ‘proven’ or ‘not proven’. However, from the 18th century, ‘not proven’ and ‘not guilty’ have co-existed as overall verdicts, leaving three possible outcomes for a criminal trial.

Other differences too exist regarding the criminal jury: the Scottish jury has 15 rather than 12 members, and decides with a simple majority verdict.

Another commonly held view is that there is no law of trespass in Scotland. This is in fact untrue. Trespass has long been a civil wrong and there also can be criminal offences of trespass under statute law. In the field of property law, many remaining elements of medieval feudal landholding were ended in England by the Tenures Abolition Act of 1660. However, in Scotland feudal elements, notably the payment of annual feu [the Scottish term for what in English is called a fief] duties to a superior, continued for much longer, only being ended by the Abolition of Feudal Tenure etc. (Scotland) Act 2000.

Another commonly held view is that there is no law of trespass in Scotland. This is in fact untrue

More broadly, Scots law is a ‘mixed system’, that is one which combines elements of the Common Law – the system that exists in England, as well as the US, many Commonwealth countries, and elsewhere – and the Civil Law, based on Roman law, characteristic particularly but not exclusively of Continental European legal systems. The balance between these two elements in Scots law is contested, from historical, legal, and ideological viewpoints. In the Middle Ages many aspects of Scots law resembled and were probably derived from English law, in part under the influence of Anglo-French settlers in Scotland. In the area of crime, both England and Scotland had juries. In land law, both were characterised by the starting of many cases by royal written orders – known as writs in England, and as brieves in Scotland. Thus recent wrongful seizure of the land could be dealt with by the ‘writ of novel disseisin’ in England, the ‘brieve of novel dissasine’ in Scotland.

However, from the end of the Middle Ages, the practical influence of Roman Law was considerably greater in Scotland than in England. As mentioned earlier, the separate system of Scottish private law was enshrined in the Acts of Union in 1707. Tellingly, to this day the study of Roman law probably continues to be more prominent in Scottish than English University law courses. One can look also at the training of Scottish advocates, who in England would be called barristers: first in the ‘List of Subjects Covered by the Faculty Examinations’ in the Faculty of Advocates’ regulations for entrants (2009 edition) is ‘Roman Law of Property and Obligations.’ At the same time, the ever-increasing element of statutory law passed in the Westminster parliament on issues covering the whole of the UK has brought greater common ground, and so too has EU legislation.

What do the historical differences mean for Brexit?

How far differences between English, Scottish, and UK laws will be determinative of the Supreme Court’s decision on 17 September may be doubted. An issue that may turn even in part on the interpretation of such hard-to-define terms as ‘political’, ‘advice’, and ‘stymie’ is always likely to be problematic for a court.

We may, meanwhile, feel reassured if only in the fact that the legal history of England, Scotland, and the United Kingdom means that the Court is not made up of judges appointed or elected on party political lines.

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John Hudson is Professor of Legal History at the University of St Andrews.