The Scottish Legal System in a Nutshell

As a Scots law graduate, I’m often asked how the Scottish legal system differs from the English one.

This overview explains the key features of Scots law and shows that, while the two jurisdictions are distinct, Scotland’s system is far less foreign than many assume.

Origins of Scots Law

To understand Scots law, it helps to step back and consider “families” of legal systems, groups of systems that share common characteristics.

Around the world, legal systems draw on a mix of influences: Chinese law, Ottoman law, tribal law, religious law and more.

In Western Europe, two principal families dominate:

• Civil law, rooted in Roman law
• Common law, derived from English law

Scotland belongs to a third family: mixed systems, combining elements of both civil and common law.

The evolution of Scots law can be traced back to the 11th century, but two periods were especially important:

• Pre‑Union (before 1603): Scotland looked to continental Europe, especially France, for legal inspiration, adopting principles shaped by Roman law.
• Post‑Union (after 1603 and 1707): Following the Union of the Crowns and later the Parliaments, English influence increased and became woven into Scots law.

Modern Scots law has its own identity, but its roots reach both to England and to ancient Rome.

Sources of Scots Law

Scots law draws on the same broad sources as English law: legislation, the courts, European law, and institutional writers.

Legislation

Law applicable to Scotland comes from:

• Westminster, which legislates for the UK
• The Scottish Parliament, created by the Scotland Act 1998

Section 1 of the Act establishes Holyrood and sets out its devolved powers. Matters such as education, housing, the environment and local government fall within Scottish competence.

Reserved matters, including immigration, defence and foreign policy, remain with Westminster.

The Scotland Act 2012 expanded Holyrood’s powers further, including areas like stamp duty, air guns and speed limits.

A key difference from Westminster legislation is that Acts of the Scottish Parliament can be challenged. Under sections 28 and 29 of the 1998 Act, Holyrood legislation is ultra vires if it:

• relates to reserved matters
• breaches EU law
• breaches the European Convention on Human Rights

These challenges, known as devolution issues, can arise in any court, but the ultimate authority is the Judicial Committee of the Privy Council.

European Union Law

EU law applied to Scotland in the same way as to England (during the UK’s membership). When a directive concerned a devolved matter, Scotland implemented it itself.

The Courts and Judicial Precedent

The doctrine of precedent operates within Scotland’s court hierarchy:

• Decisions of the Supreme Court (formerly House of Lords) in Scottish appeals bind all lower Scottish courts.
• Decisions of the Inner House of the Court of Session are binding.
• Decisions of the Outer House, Sheriffs and Justices of the Peace are not binding.

English cases are persuasive, as are decisions from other mixed systems such as South Africa.

Institutional Writers

Scotland has a rich tradition of authoritative legal scholarship. Key institutional writers include:

• Craig (Jus Feudale, 1655)
• Stair (Institutions of the Law of Scotland, 1773)
• Bell (Commentaries on the Law of Scotland, 1800)
• Hume (Commentaries on the Law of Scotland Respecting Crimes, 1797)
• Alison (Practice of the Criminal Law of Scotland, 1833)

Their works still influence Scots law today.

Scotland’s Court System

The judiciary is headed by the Lord President, who serves as:

• Lord President of the Court of Session
• Lord Justice General of the High Court of Justiciary

The Lord Justice Clerk is the deputy. Judges are appointed by the monarch on the First Minister’s recommendation, following advice from the Judicial Appointments Board for Scotland.

Criminal Courts

The head of criminal prosecution is the Lord Advocate, assisted by the Solicitor General for Scotland. The Crown Office and Procurator Fiscal Service prosecutes crime and investigates deaths, comparable to the CPS and DPP in England.

Police investigate offences and pass cases to the Procurator Fiscal, who decides whether prosecution is appropriate and, if so, in which court. Alternatives include warnings, fines, compensation or social work intervention.

Criminal Procedure

Criminal cases proceed either:

• Solemnly: judge + jury of 15
• Summarily: judge alone

Court Structure

• Justice of the Peace Courts
• Sheriff Courts

Recent reforms under the Making Justice Work programme have led to closures of several sheriff and JP courts.

• High Court of Justiciary

Civil Courts

Civil matters are handled by:

• JP courts
• Sheriff courts
• Various tribunals (employment, education, children’s hearings)

The Court of Session is Scotland’s supreme civil court. It:

• Sits in Parliament House, Edinburgh
• Has exclusive jurisdiction over judicial review
• Has a right of appeal to the UK Supreme Court

It is divided into:

• Outer House: first instance, 22 Lords Ordinary
• Inner House: appeal court, split into First and Second Divisions, led by the Lord President and Lord Justice Clerk

Scottish Lawyers

Scotland’s legal profession is divided into solicitors and advocates.

Solicitors

Solicitors handle general legal practice and appear in JP and Sheriff courts. Scotland has many respected firms, including Brodies, Dundas & Wilson, Burness, Dickson Minto and Shepherd & Wedderburn.

Solicitor advocates have extended rights of audience in the Court of Session and High Court of Justiciary.

Advocates

Advocates are specialists in courtroom advocacy, like barristers.

They:

• Are instructed by solicitors
• Have rights of audience in all Scottish courts and the UK Supreme Court
• Are members of the Faculty of Advocates, based in Parliament House
• Train through additional exams and a period of devilling (pupillage)

Training and Qualification

To qualify as a solicitor or advocate, students must:

• Complete a four‑year LLB (or two‑year accelerated LLB)
• Obtain the Diploma in Legal Practice
• Undertake a two‑year traineeship in a solicitor’s office
• For advocates: complete Faculty exams + devilling