Scottish law recognises four sources of law: legislation, legal precedent, academic writings and custom.
The Sources Of Legislation in Scottish Law
Legislation affecting Scotland may be passed by Holyrood (Scottish Parliament), Westminster (Parliament of the United Kingdom, made up of the House of Commons and the House of Lords) or The European Union (made up of The European Commission, The Council of the European Union, The European Parliament, The Court of Justice and The Court of Auditors)
As a member of the European Union any regulation or directives they pass must be enforced if a lesser or no law exists. Although made up of 5 Institutions, the legislation of the European Union is normally passed by the European Parliament and the Council of the European Union. Before proposing any acts The European Commission assesses any potential consequences by preparing Impact Assessments, these assessments are also used to explain why any action is required at European level. The European Parliament and the Council review proposals by the Commission and propose amendments. If the Council and the Parliament cannot agree upon amendments, a second reading takes place. In the second reading, the Parliament and Council can again propose amendments. Parliament has the power to block the proposed legislation if it cannot agree with the Council. If the two institutions agree on amendments, the legislation can be adopted. If they cannot agree, a committee tries to find a solution. Both the Council and the Parliament can block the legislative proposal at this final reading.
A regulation is an act that immediately becomes a law for all members and takes precedence over any existing law already in place, where as a directive is a act which requires members enforce, but leaves a certain amount of leeway and time as to the exact rules to be implemented. On occasion the laws of a member state may already be in place so they would only have to ensure that law stay in place.
The case of Factortame v Sec. of State for Transport (1989) is a case that confirmed the supremacy of European over National Law. Factortame Limited was a UK company owned solely by three Spanish nationals who all lived in Spain. The Spanish fishermen had taken advantage of a loophole in the registration requirements contained in the Merchant Shipping Act 1894 which allowed ownership of vessels by UK registered companies, even though non UK nationals could not register vessels. The fact they could fish waters off Scotland meant they were using some of the UK fishing quota even though they landed their fish in Spain. It was a loophole that the UK government quickly tried to cut out by replacing the Merchant Shipping Act 1894 with a new Shipping Act 1988 and importantly a new Merchant Shipping (registration of Fishing Vessels) regulation, as from March 1989 vessel registrations under the 1894 act would lapse and would require re registered under the new acts. Under the new registration process the inclusion of -The vessel must be British-owned.
-The vessel had to be managed and its operations had to be directed and controlled from the UK -Any charterer, manager or operator had to be a qualified person or company. A "qualified person or company" was a person who was a British citizen resident and domiciled in the UK or a company which was incorporated in the UK and had its principal place of business there having at least 75% of its shares owned by, and at least 75% of its directors being, "qualified persons”.
Under the new regulation, none of Factortame’s ships would qualify for registration, but they declared that the 1988 Act could not be applied to them on the grounds that such application would be contrary to rights under EU law, specifically the right not to be discriminated against on the grounds of nationality, the right of individuals and companies to establish themselves in business anywhere in the EU and the right to participate...
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