Law and society: Scottish legal heroes About this free course This version of the content may include video, images and interactive content that may not be optimised for your device. You can experience this free course as it was originally designed on OpenLearn, the home of free learning from The Open University – There you’ll also be able to track your progress via your activity record, which you can use to demonstrate your learning. Copyright © 2017 The Open University Intellectual property Unless otherwise stated, this resource is released under the terms of the Creative Commons Licence v4.0 http://creativecommons.org/licenses/by-nc-sa/4.0/deed.en_GB. Within that The Open University interprets this licence in the following way: www.open.edu/openlearn/about-openlearn/frequently-asked-questions-on-openlearn. Copyright and rights falling outside the terms of the Creative Commons Licence are retained or controlled by The Open University. 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Head of Intellectual Property, The Open University 2 of 183 Thursday 1 November 2018 Contents Introduction and guidance 7 Introduction and guidance 7 What is a badged course? 7 How to get a badge 8 Week 1: Law making in Scotland 11 1 The Scottish legal system 11 1.1 Thinking about law 12 2 The Scottish Parliament 14 2.1 Legislative competence 14 2.2 Legislative consent motions 17 2.3 Law making in the Scottish Parliament 18 3 The UK Parliament and law making 19 4 Common law 21 4.1 Statutory interpretation 22 5 Summaries of sources of law making 22 6 International law 23 6.1 The ECHR 24 6.1.1 The ECHR and UK 25 6.1.2 The Human Rights Act 1998 26 6.2 The European Union 27 6.3 The UK and EU 29 6.4 Summaries of European influences on law making in Scotland 29 7 Government ministers 30 8 This week’s quiz 31 Summary 31 Week 2: An overview of the legal history of Scotland 34 1 Law and medieval Scotland 34 1.1 The Regiam Majestatem 36 1.2 Canon law 36 1.3 The traditional ‘divine right of kings’ 37 2 Power, legislation, society and change 39 2.1 The emergence of a professional judiciary 39 2.2 A changing society: monarchs and church 42 2.3 Records and land ownership 45 2.4 The High Court of Justiciary 45 2.5 The union 46 3 Other influences 49 3.1 The institutional writers 50 3 of 183 Thursday 1 November 2018 3.2 Legal education 51 3.3 The Scottish Parliament 52 4 This week’s quiz 53 Summary 53 Week 3: Influencing and shaping legal systems 55 1 Law and society 55 1.1 Rules and society 55 1.2 Law as a system of rules 56 1.3 Perceptions of law 58 2 The role of law 59 2.1 Influences shaping law 60 2.2 Law and order in context 61 2.3 Laws and values 64 3 The rule of law 66 4 Legal systems and law 67 5 This week’s quiz 69 Summary 69 Week 4: Influence on a global scale: snails and ginger beer 7- 1 1 Background 71 1.1 The facts 72 1.2 Information often omitted by standard law texts 75 2 The importance of Donoghue 79 2.1 Social economic conditions 79 2.2 Reactions to the case 81 3 The global influence of Donoghue 82 3.1 USA 82 3.2 Canada 83 3.3 New Zealand 84 3.4 Australia 84 4 This week’s quiz 85 Summary 85 Week 5: Judges 87 1 Judicial precedent 87 2 A brief introduction to legal reasoning 88 3 Legal reasoning and Donoghue 90 3.1 Stevenson’s pleadings 90 3.2 Donoghue’s pleadings 91 4 The House of Lords’ decision 93 5 Finding the ratio in Donoghue 94 6 Use of legal sources in the judgments 97 6.1 The place of the neighbour principle in the ratio 99 4 of 183 Thursday 1 November 2018 6.2 Was this new reasoning? 100 7 Scottish judges 101 8 This week’s quiz 104 Summary 105 Week 6: Making a difference 107 1 Legal heroes 107 1.1 A unique legal tradition 107 2 Individuals and organisations 108 2.1 James Wilson (1742–1798) 108 2.2 Whisky and golf 109 2.3 Mary Barbour (1875–1958) 110 2.4 Caroline Mockford 111 3 Thinking about why change may be needed 112 4 Reflecting changes in society 117 5 A UK Supreme Court 120 6 Making a difference individuals and organisations 124 Donald Dewar 124 Sir David Edward 127 Fidra 129 Assynt Crofters’ Trust and Allan Macrae 129 John Muir Trust 131 Madge Easton Anderson 131 Dame Margaret Henderson 132 Elish Angiolini 134 Finally 136 7 This week’s quiz 136 Summary 136 Week 7: Challenging decisions 139 1 Delegated powers: decision-making and law 139 2 What is the power and are there any limitations? 140 2.1 Thinking about the power 141 2.2 A structured approach to analysing the power given 142 3 The process of taking the decision 143 3.1 Considerations to be made 143 3.2 Discretion 144 4 Who can make the decision 145 5 Factors to always consider 146 Devolution 146 Human rights 146 Equality 146 Data protection and freedom of information 147 6 Rules of natural justice 148 6.1 Consultation 148 6.2 Procedural fairness 149 5 of 183 Thursday 1 November 2018 6.3 Bias 150 6.4 Reasonableness 150 6.5 Proportionality 151 6.6 Giving reasons 151 7 Bringing this all together 152 8 This week’s quiz 154 Summary 154 Week 8: Making a difference: becoming involved 157 1 Making a contribution to the work of the Scottish Parliament 157 1.1 Becoming involved in the lawmaking process of the Scottish Parliament15- 9 2 Making a contribution to the UK Parliament 162 3 Other ways to become involved 166 4 Thinking about making a difference 172 5 This week’s quiz 176 Summary 176 Course summary 176 References 177 Acknowledgements 180 6 of 183 Thursday 1 November 2018 Introduction and guidance Introduction and guidance Introduction and guidance Introduction and guidance Welcome to this badged open course, Law and change: Scottish legal heroes. The free course lasts eight weeks, with approximately three hours of study each week. You can work through the course at your own pace, so if you have more time one week there is no problem with pushing on to complete another week’s study. This course explores the legal system in Scotland and considers how individuals, institutions and organisations have made a difference by challenging the law or legal system. You learn about the law-making process in Scotland, explore how the legal system has been influenced by change and consider how law has been used to respond to developments in society. Scots laws and lawyers have influenced development of laws on a national, regional and global level and you explore examples of this influence. Following this course, you will also be able to explain and demonstrate a number of skills, including problem solving, argument and reasoning. After completing this course, you should be able to: understand the complexity of issues in law-making and application discuss how laws reflect the society within which they are made explain the role of individuals and institutions in effecting legal change.