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No physician who performs a legitimate medical operation on a patient commits a criminal offence or a delict. This is so in spite of the fact that infringement of the bodily integrity of another person is seen as both a crime and a civil wrong. Notwithstanding the fact that the patient may desire the operation, the defence of consent cannot possibly justify the serious injuries intentionally inflicted in the course of, say, an amputation, since this procedure is highly invasive and effects irreversible changes to the patient’s physicality. The so-called medical exception is consequently invoked to preclude prosecution of medical practitioners who carry out procedures that involve serious wounding. Quite where the justification for the medical exception lies, remains controversial. The exception has long been justified axiomatically – by reference to the existence of surgery as a profession – or has otherwise been held to be sui generis. Herein, however, it is submitted that its basis in Scots jurisprudence can be found through consideration of the etymology of the word “injury” as applied as a term of art in Scots law. At its core, the crime/delict of “injury” is connected to the Roman notion of iniuria, which served to preserve and uphold the boni mores – good morals. Conduct that contumeliously affronted the dignity of a person could clearly be classified as contra bonos mores, but it is apparent that iniuria may be effected even in instances where there could be no subjective affront to the individual person. This, it is submitted, rationalises the medical exception: “Proper medical treatment” is not contra bonos mores and so cannot be said to amount to injury or assault. Hence, the framing of the medical exception as such in Scots law is incorrect. The so-called exception is, rather, a necessary consequence of the conceptual understanding of the terms “assault” and “real injury” in Scottish jurisprudence.

“What remedy is available to creditors seeking to exercise diligence over corporeal moveable property in the possession of their debtors, but the ownership of which lies with another? The presumption of ownership from possession offers some relief to creditors faced with an action for vindication by the true owner of the goods. But the presumption can be overcome. However, reputed ownership seeks to permit creditors to proceed with diligence when the moveables have been fraudulently, carelessly or unnecessarily left in the possession of the relevant debtor. This article will explain that the true owner is personally barred from recovering the goods, as a result of such “fraudulent” or careless conduct. Lengthy academic discussion of the doctrine in Scotland is scarce. To analyse its legal basis, reference is made to South Africa and England, which recognise the reputed ownership context as part of the general law of estoppel. This article will also explain that despite its mostly historical significance, reputed ownership still survives in the current law, within the statutory framework of the Debt Arrangement and Attachment (Scotland) Act 2002.”

Despite the incorporating union of 1707, the pursuit of legislation at Westminster was an overwhelmingly English practice in the eighteenth century, even when Scotland's smaller population is taken into account. Narratives of the making of the post-union state have commonly stressed Scotland's limited incorporation before 1800, and the significance of executive action exercised through military force and orders from central boards for manufactories and agriculture. But if our attention is turned to litigation, a different picture of the British state and Scotland's place within it emerges. Scottish appeals to the house of lords, which was the state's highest civil court, are shown to be a means of bringing in British power to maintain autonomy and privilege at the local, rather than national, level. With much litigation centred on preserving local privileges, the utility of ‘nation’ as an interpretive framework is questioned. Both British and Scottish governance are shown to be pluralistic, with considerable mixing of privileges and autonomies. During the century, Scots applied for Westminster's power to defend their privileges from infringement by other Scots, whilst also insulating themselves from some of the effects of Westminster legislation. The union was constituted by a shifting and mixed tapestry of laws.

This article analyses the separate legal personality of partnerships, drawing on Hansmann and Kraakman’s identification of the attributes shared by businesses possessing legal personality. Their work provides a jurisdictionally-neutral standard of comparison which is applied here to the Scottish partnership which, unusually amongst jurisdictions influenced by the common law tradition, possesses separate legal personality. The historical development of Scottish partnerships is explored, from its origins as a Roman-inspired type of societas, a contract centred on the internal rights and duties of the partners inter se, towards a modern, outward-facing business able to contract with third parties in its own name. Challenging orthodoxy in Scottish scholarship, the author identifies the period during which Scots law moved from contractually-inspired partnership to partnership secured by organisational law, and specifically entity shielding. To this extent, Scots law supports Hansmann and Kraakman’s view that attributes of legal personality develop gradually, and are secured by organisational law rather than contract law. Disagreeing with them, however, she uses the Scottish experience to illustrate that lack of perpetual succession is not, as they argue, a “mere inconvenience which can easily overcome with contractual workarounds”, but rather an essential requirement of a workable partnership with legal personality.

This paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? The research presented is of particular relevance in light of Brexit. It allows prescient reflection on the significant disruption and impact the United Kingdom's exit from the EU is likely to have on areas of domestic law which are highly integrated with EU law. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making in the Scottish and Irish legal systems in general.

Scots law was expressly preserved by the Treaty and Acts of Union in 1707, which gave rise to the United Kingdom. It would be both untenable and undesirable to have different legal systems within the United Kingdom that could produce widely differing practical results. Many Scots lawyers also attended university on the continent and were there exposed to the influence of Civil Law. Following devolution, the Scottish Parliament was officially opened on 1 July 1999 in Edinburgh. As a consequence, certain forms of European law became directly applicable in Scotland. An important aspect of modern Scots law concerns human rights. Legislation is created by either the Scottish Parliament or the UK Parliament. Primary legislation takes the form of statutes; secondary legislation takes the form of statutory instruments and by-laws, issued by Ministers or local authorities pursuant to delegated authority.

Section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015 states that it is an offence for any person to hold another person in servitude or slavery. In February 2018, John Miller and Robert McPhee appeared at the High Court in Glasgow, charged on indictment with this offence. In defining both ‘servitude’ and ‘slavery’, the court was obliged, per s 4(2) of the 2015 Act, to have due regard to the understanding of these terms which has evolved out of the jurisprudence of Article 4 of the European Convention on Human Rights (ECHR). ‘Slavery’, then, was said to denote ‘the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’. If, however, the definition of ‘slavery’ necessarily ‘involves rights of ownership’, then it follows that any enactment of law specifically proscribing slavery is nugatory. Indeed, inMiller, the court ultimately held that ‘there was no evidence upon which they could hold that the complainer had been held in a state of slavery’. This paper consequently asks whether or not in passing s 4(1)(a) of the 2015 Act, Parliament criminalised an impossible action.

Geographical barriers include the sheer distance of citizens from the Parliament, the large constituency sizes, and the lack of a single recognisable parliamentary site. In comparison to the majority of the national parliaments, the European Parliament (EP) is physically further removed from its citizenry. Another geographical barrier to citizen awareness and support is the size of a citizen’s electoral constituency and the related issue of the ratios of Members of the European Parliament (MEPs) to population totals. Compounding the geographical barriers to contact, awareness and support are institutional barriers such as the number of institutions and the ever-evolving complexity of procedures and areas of competence. Although Eurobarometer data on awareness of the EP through the media has shown evidence of fluctuation in between elections, the dominant trend is still that awareness heightens around election time. Support for the EP among its citizens can be measured by a number of indicators.

What role does property doctrine play in defining the scope of “matrimonial property” for the purposes of financial provision on divorce in Scots law? In Grant v Grant, the Sheriff Appeal Court held that the date at which an asset was acquired can be the date of construction of family house, rather than the date of acquisition of the land on which it stands. Does the statutory context justify departure from the long-established doctrine that the legal status of an accessory follows that of the principal? If the usual rules of property law do not apply, on what basis are decisions about the scope of “matrimonial property” to be made? Is fairness between the parties the only principle that matters?

This article examines the viability and utility of introducing a statutory power in Scotland enabling its environmental regulators to take a first-ranking charge over land. It would facilitate recovery of costs incurred in undertaking the unfulfilled environmental obligations of a recalcitrant or financially distressed operator. Such a charge has been characterised as contrary to Scots land law. The article makes two original contributions, the latter of which is pertinent to other jurisdictions considering implementing such a charge. First, Scots land law is found to be receptive to such a charge provided there is appropriate publicity and its priority as compared to other charges created in favour of third parties at an earlier date is expressly stated in statute. Secondly, with the policy rationales for the 'polluter-pays' principle of European Union environmental law used as a frame through which to understand the multi-faceted functions of corporate environmental liability, such a charge is shown to play an important role in facilitating these. Recommendations are made for its implementation in statute.

Children in Scotland are held criminally responsible from the age of 8, something that has attracted wholly justified criticism within the country and from international organisations, including the UN Committee on the Rights of the Child. Despite the fact that this puts Scots law in the same camp as some of the world’s least progressive regimes, proposals to raise the minimum age of criminal responsibility have, to date, been rejected. For the second time this century, a government-appointed advisory group recently recommended raising the age to 12. Setting the minimum age of criminal responsibility in Scotland in the context of historical, international and comparative developments and the burgeoning contemporary literature, this article argues that the climate for change has never been better. It predicts that, this time, the advisory group’s recommendation will result in legislative reform and highlights the challenges that will result.

The Treaty of Union 1707 between Scotland and England and the respective implementing legislation in each Kingdom contained provisions which today we might describe as ‘opt-outs’. These opt-outs from incorporating Union preserved aspects of the Scottish legal system which, along with the Presbyterian religion and the system of education, helped to ensure that Scottish identity was supported by some of the most powerful aspects of the state. This essay will examine some of the provisions of the Treaty, analyse aspects of the legal system and law that persisted after the Union, comment on the extent to which 310 years of the Union with England influenced that law, reflect on membership of the EU and the harmonization which it brought to the legal system and consider the impact of the Scottish Parliament on that law and legal system.

The United Kingdom’s relationship with the European Court of Human Rights (ECtHR) has been historically fraught. This article examines this relationship with a view to understanding how the United Kingdom’s conceptions of human rights protection, both domestically and in Europe, shape its willingness to comply with ECtHR judgements. The article argues that the U K maintains a sense of a distinctly ‘British’—as opposed to ‘European’—rights culture, based on principles such as parliamentary sovereignty and so-called common sense values. In doing so, the article explores an important analytical gap in terms of understanding the relationship between compliance behaviour and international law, as current theoretical explanations do not necessarily explain how cultural perceptions of rights and law translate into decisions to comply.

Pesticede decision - Env NGO - COM decision T-192/12 – Pesticide Action Network Europe / European Commission Subject GC - dismissed as Implementing Act - is not AA

The decisions of the Court of Justice of the European Union (CJEU) have had an immense impact on development of European Union law, and this has raised a critical discussion about how the CJEU establishes and uses case law. Through a comparison with the United States Supreme Court (USSC) and network analysis, this article argues that much of the criticism is based on false expectations as to the nature of the CJEU. We argue that the Court of Justice must be understood as a precedent-driven constitutional court and that, if we take that as our starting point, its approach to case law is quite reasonable.

Scottish family law cases seldom find their way to the Supreme Court, but this particular challenge to the competence of the Children and Young People (Scotland) Act 2014 seemed destined to make it there from its inception. The decision handed down is significant in two respects. First, in a point that may be of greater political than legal interest, it unambiguously dismisses the argument that the named person scheme in itself amounts to an unjustifiable interference with family life (although a narrower human rights argument was successful). Secondly, in a point that will be of general interest to public law academics and practitioners, it clarified and develops the court's approach to defining "reserved matters" in the devolution context.

KONCEPCJA UNII OPARTEJ NA RZĄDACH PRAWA JAKO ARGUMENT PRAWNY PRZED TRYBUNAŁEM SPRAWIEDLIWOŚCI UNII EUROPEJSKIEJNiniejsza praca ma na celu rozważenie koncepcji Unii opartej na rządach prawa, obecnej w prawie Unii Europejskiej, w ramach orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej. Autor podejmuje się analizy ilościowej oraz jakościowej i oceny wskazanego zagadnienia, katalogując ponad 120 poszczególnych orzeczeń Trybunału odnoszących się do „rządów prawa” w powyższym znaczeniu w tym rozważając 95 przypadków, w których omawiane zagadnienie zostało rozważone co do istoty. W ten sposób pytanie badawcze niniejszej pracy brzmi — czy twierdzenie procesowe i argumentacja oparte na „rządach prawa” mają jakiekolwiek szczególne znaczenie dla skarżącego co do prawdopodobieństwa uzyskania korzystnego rozstrzygnięcia przed Trybunałem?

Children’s rights have long featured in Scottish politics and have been a particular focus of the Scottish National Party’s platform since it became the majority governing party in 2011. In April 2019 the leader of Scottish Government pledged that the government would incorporate the CRC into national law during this parliamentary term, which ends in March 2021. This chapter explores the way in which this pledge and previous Scottish implementation efforts have supported a commitment to children’s rights. It begins with a brief overview of the legal settlement between the Scottish and UK governments and the growing attention on children’s rights post devolution. This is followed by an overview of key legal and non-legal measures implementing various aspects of the CRC in Scotland, including points of tension. How these measures have impacted judicial protection of children’s rights will then reveal the gaps that persist in Scots law. The chapter then moves on to consider the potential for further entrenchment of the CRC in Scotland through direct, maximalist incorporation as reflected in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill that was introduced in Scottish Parliament on 1 September 2020.

This article makes the case for reform of divorce law by demonstrating that the current provisions in the Divorce (Scotland) Act 1976 are not compliant with Article 8 ECHR. Scots law's mix of fault and no fault provisions requires the mandatory disclosure of often highly personal and intimate details in order to establish adultery, behaviour, or non-cohabitation. This statutory requirement to disclose private and personal information to the state, to fulfil the test for irretrievable breakdown of the marriage, constitutes an invasion of the spouses’ privacy. The article then goes on to show that such invasion cannot be justified as necessary in a democratic society, in terms of Article 8 jurisprudence. Consequently, reform is required to ensure that Scots divorce law is ECHR compliant. The final section sets out a proposal to transform divorce law in Scotland into a no-fault notification procedure, removing the damaging and invasive process currently in force.

In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies.

It is generally accepted that the development of a Union of law is largely due to the judicial decisions of the Court of Justice of the European Union (hereinafter, CJEU). With its judicial pronouncements, the CEJEU aims to achieve the same legal effects in every language version of its judgments and, through them, to ensure the uniform application and interpretation of European Union law. Nevertheless, such judicial pronouncements, with normative and binding force, are the result of collegial decisions and drafted by jurists in a language that is usually nottheir mother tongue. In addition, they are also the result of various permutations associated with the necessary legal translation from and to (and vice versa) the working language of the Court and the official languages of the European Union. The published judgments presented as authentic are, in most cases, translations. To understand the construction of decisions of the CJEU is to understand the construction of the European Union law, and by consequence, the European project itself.

Acknowledgement Notes on Contributors Chapter 1 Discriminating Against Children. Katre Luhamaa, Marit Skivenes & Karl Harald Sovig Chapter 2 Article 2 of the United Nations Convention on the Rights of the Child: Non-Discrimination and Children's Rights. Elaine E. Sutherland Chapter 3 Respecting Age: Discrimination against the Young and the Old. David Archard Chapter 4 The Ageing of Article 2(1): The Child's Right to be Free from Age-Based Discrimination. Claire Breen Chapter 5 Illegitimate Consequences of 'Illegitimacy'?: Article 2 UNCRC and Non-Marital Children in the British Isles. Brian Sloan Chapter 6 The non-discrimination principle in child protection: a snapshot on a seemingly trivial practice of transitions in care. Tarja Poesoe Chapter 7 That time of the month: discrimination against girl children who cannot afford sanitary health care. Lize Mills & Comine Howe Chapter 8 Collateral Damage: Discrimination in Failure-to-Protect Laws for Children's Wellbeing. D. Kelly Weisberg Chapter 9 Citizen Children and Unauthorized Immigrant Parents: Can Best Interest Analysis Relive Discrimination Based on Status. Linda Elrod Chapter 10 Hidden discriminatory practices in access to education for children with disabilities - a challenge for children's rights. Trynie Boezaart Chapter 11 Starting from the System Building - Child Protection in China. Liu Huawen Chapter 12 The importance of Article 2 of the Convention on the Rights of the Child for refugee children. Sonia Human Chapter 13 Birth and Status: the Ongoing Discrimination against Children in Scots law based on Parentage. Gillian Black Index

SummaryIt is over 40 years since the principle of informed consent was accepted in the USA and it has been long established in other common law jurisdictions. But for decades English law has been constrained by theSidawaycase, which effectively perpetuated a form of medical paternalism. Nevertheless, a patient-centred approach can be traced to one of the judgments in that case, and in the case ofMontgomerythe Supreme Court has now adopted an approach to consent which is based on self-determination and autonomy and is more closely aligned to professional practice. It calls for a dialogue between doctor and patient, recognition of the patient's right to make a choice and recognition by the doctor of their duty to provide the comprehensible information necessary for the patient to exercise choice, having regard to what a prudent patient, in that patient's circumstances and with that patient's characteristics, would want to know.Learning Objectives• Understand how the principle of informed consent has emerged in UK law• Understand the principle of informed consent• Know how to apply the principle of informed consent to the practice of psychiatry

The 23 June 2016 referendum result has the potential to impact hugely on Scotland’s relationship with the European Union and indeed with the rest of the UK. Within the framework of the current devolved settlement in the UK, withdrawal from the EU by the UK following activation of the EU’s ‘exit clause’, will mean that Scotland also leaves the UK, despite a significant majority of the Scottish electorate voting to ‘remain’. In legal terms, the United Kingdom as a state recognised under international law, is the signatory to the European Treaties. Withdrawal of that state, includes its constituent parts.

The author discusses the relationship between two legal orders: international law and European Union (EU) law. The main provisions of this relationship have been established through the precedential practice of the Court of Justice of the European Union – the EU’s main judicial body. This kind of research seems important because of the gap in the theory of international law caused by the immutable dogma of the supremacy of international law. However, modern legal practice demonstrates a certain fragmentation of the international legal order because of the impact of the existence and development of regional supranational legal orders. The EU legal order, with its own special nature (sui generis), is undoubtedly one of the most developed among them. The Court of Justice of the European Union performs a crucial role in the EU legal system concerning application and interpretation of EU law. It provides a uniform interpretation of this law for the purposes of development of supranational integration. In this context the Court of Justice the European Union establishes the status of European law and its relationship with the national legal systems and international law. The Court acts as protector of the EU legal order against the influence of other legal orders. The Court’s precedential practice reveals EU law’s tendency towards its constitutionalization and the development of its autonomy. The latest practice indicates the Court’s powers to review the EU institutions’ acts in relation to the implementation of UN Security Council resolutions. This proves the Court’s ability to establish indirect control even over UN acts.

The need to determine the scope of EU policies is not a new challenge in the case law of the Court. The extent of the powers of the European Union institutions – beyond its constitutional significance – also has considerable practical importance, taking into account several factors such as decision making procedures to be applied, actors involved in the procedure, the binding force of the legal actions in question as well as the scope of judicial review. Delimitation of EU policies raises further delicate questions in the field of external actions where sensitive – commercial, defense and security policy – interests of national governments are at stake, not to mention the particular interests of the other actors of EU governance.The action of the Parliament calls on the Court, in the context of the fight against piracy off the coast of Somalia, to clarify the boundary between three fields of the European Union’s external action, namely the common foreign and security policy (CFSP), the external dimension of the area of freedom, security and justice (AFSJ) and development cooperation. The case examined in this paper provided the first opportunity for the Court of Justice to interpret the scope of the European Parliament’s prerogatives, granted by the Treaty of Lisbon, in the procedure of the conclusion of CFSP international agreements between the EU and a Third State.

In this article, Professor Hector MacQueen offers a Scots law response to the recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author argues that unjustified enrichment provides, and continues to provide, a useful “generalising” concept, the creative effects of which are far from spent (at least in Scotland).

Materials are a critical element within the construction industry yet- the conditions and legality surrounding their ownership remains an area of uncertainty. The difficulty in ascertaining ownership is often found in the instances of payment, delivery and complex contractual relationships. Additionally, the nature of the construction industry whereby raw materials are purchased within a supply chain and are incorporated into the fabric of buildings or goods often creates further confusion. The importance of ownership is most apparent in the instance of disputes or insolvencies, both of which are regular occurrences within the construction industry and in the management of a project regarding cash flow and programme. To inform the position and stance of Scots Law in relation to ownership of materials it is necessary to evaluate current law regarding ownership of materials in Scotland through the undertaking of a literature review which establishes the prevailing legal structure. Conclusions and recommenda...

The European Court of Human Rights and the English Supreme Court have expanded the scope of the positive obligation to protect the right to life under art 2 of the Convention. A question of particular concern for public authorities is the extent to which negligent conduct may fall within art 2. Strasbourg principles relating to standing for victims, as well heads of damage (just satisfaction), are more generous than the Fatal Accidents Act 1976 in the UK. The art 2 obligation also mandates consideration of matters which would not be regarded as justiciable under the English common law. This article provides a critique of recent developments in the case law under art 2, both at Strasbourg and in the English Supreme Court, and draws out the consequent challenges for coherence in English law.

This article examines the role of the European Parliament in ensuring democratic participation in European Union external relations and global governance. Although the Lisbon Treaty has reinforced the European Parliament’s foreign affairs prerogatives, many obstacles hinder its influence. This prompts the European Parliament to invest considerable institutional resources not only to counterbalance the Commission and the Council and reduce information asymmetry, but also to enhance its posture on the world stage through value-oriented and region-oriented parliamentary diplomacy. The article argues that by conducting world diplomacy, the European Parliament generates critical mass for its institutional empowerment by a crafty application of its treaty rights, by means of non-legislative instruments, and by establishing bilateral and multilateral diplomatic contacts with parliamentary and executive bodies worldwide. The European Parliament thereby attempts to portray itself as an actor without which decisions cannot be made.

It is often argued that the crucial democratic body of the European Union (EU) is the European parliament. Over time, the European parliament's role has increased from being a consultative body to one which has an institutionalised co-decision authority in EU lawmaking. After the Lisbon treaty and the abolition of the Western European Union (WEU), the European parliament also has an increasingly important role as an intergovernmental European assembly. This article examines the British discussion about the country's commitment to parliamentary scrutiny, representation and supervision, in which the need for a genuine debate over representation within the EU is highlighted. British prime ministers have, in most cases, defined both the government's and parliament's stance on European integration either through their personal role, or through wide-ranging discussions in their cabinets. However, in the 2000s, the Houses’ parliamentary committees have also influenced the shaping of the British position through their scrutiny of European policies. They were effective in the scrutiny of the Common Foreign and Defence Policy (CFDP), arguing that the government should keep parliament informed of discussions concerning the CFDP, and that the quality of the democratic process depended largely on the relationship between the British national parliament and the government. The parliamentary committees and the government both agreed that parliamentary scrutiny should not be left to the European parliament alone; the participation of national parliamentarians with specialist knowledge of the EU level was also seen as especially important.

Leaving the European Union will be the most significant systemic change to Scots law since the creation of the Scottish Parliament in 1999. The essays in this special Analysis section survey some (though by no means all) of the key aspects of the legal system likely to be affected by Brexit. In some of these areas, such as agriculture and fisheries, EU law has been the central source of legal regulation since we joined what was then the EEC in 1973. In other areas, EU law has played a role alongside domestic regulation, in greater or lesser degrees. At the time of writing (October 2017) – some 16 months after the EU referendum and seven months after formal notification of the United Kingdom’s intention to withdraw from the EU was given under Article 50 TEU – it is surprising just how much uncertainty there still is about the likely effects of Brexit. The articles in this section identify three key sources of uncertainty.

Rafique v Amin is one of the few reported cases to address the use and management of property that is owned in common. While not an obviously gendered dispute, it nevertheless involves a number of issues fundamental to feminist theory, in particular, notions of identity and autonomy and the role of property rules in mediating between individual and collective interests. In Scots law, property owned by multiple individuals is often held as common property. This is similar to the English concept of the equitable tenancy in common, in that each owner is treated as having a distinct and separable share in an undivided whole. Debate in Rafique occurs within the context of an antipathy towards the very idea of common property that is embedded within Scots legal doctrine.

European Union law has curtailed the traditional discretion Member States have in ordering non-nationals to leave their territory. Although Directive 2004/28 (the Citizenship Directive) has enhanced the system of protection afforded to offending European Union citizens, it still contains a number of cracks that lead to policy incoherence and gaps in rights protection. This is evident in the first rulings on Article 28(3) of Directive 2004/38 concerning the deportation of offending EU citizens. These issues also threaten to transform European Union citizenship from a fundamental status into a thin overlay that, under pressure from national executive power, loses its effect and significance. To be sure, EU citizenship has demonstrated that community belonging does not have to be based on organic-national qualities, cultural commonalities, or individuals' conformity to national values, but the continued deportation of long-term resident Union citizens makes nationality the ultimate determinant of belonging. The subsequent discussion suggests possible remedies and makes recommendations for institutional reform.

This chapter examines the crime of culpable homicide, looking, in particular, at the way in which it navigates the broad range of behaviours which may be brought within its own ambit of lesser seriousness in killing. It provides an overview of the way in which culpable homicide is defined in Scots law. The chapter considers its operation on the borderline with murder – where the accused has killed in a manner which bears possible hallmarks of the more serious crime but the lesser offence is, in fact, indicated. It also considers culpable homicide in its own right where this is the crime to be charged from the outset. Culpable homicide serves an important function in Scots criminal law. The law recognises two forms of this 'involuntary' type: lawful act and unlawful act. Finally, the chapter draws on these discussions to evaluate the efficacy of the offence as it operates in Scots criminal law currently.

In the fi rst part of 2015 the Court of Justice (CoJ) of the European Union (EU) delivered a comparatively large number of rulings relevant for the fi eld of social security. None of the twelve rulings selected for purposes of this overview can be labelled as landmark judgments introducing new principles or overruling existing ones. Yet, virtually all of the judgments do bring important clarifi cations by specifying previously recognised principles or interpretations or by applying these in cases involving other factual circumstances. Th e most interesting judgments concern the rules determining the applicable legislation ( Franzen, Kik and Evans), the application of Regulations 1408/71 and 883/2004 to ‘socially earmarked taxes’ ( de Ruyter), the continued legal signifi cance of bilateral social security agreements concluded before the aforementioned Regulations became applicable to the States concerned ( Balasz), the right to unemployment benefi ts for frontier workers ( Mertens), the right of Turkish nationals to export of special non-contributory cash benefi ts (SNCBs – Demirci) and the principle of non-discrimination on grounds of gender in social security matters (Cachaldora Fernandez).

An English court faced with a question of EU law may sometimes decide it itself, or may refer it to the Court of Justice of the European Union (CJEU) in Luxembourg for a preliminary ruling. If a reference is made, the English proceedings will be stayed pending the ruling of the CJEU. Once it is made, the ruling is binding on the English court, but it is only a preliminary ruling, in that the English court is left to apply the ruling to the facts of the case and to give judgment. This chapter discusses the questions which may be referred to the CJEU; mandatory references; discretionary references; procedures in England; procedure in the CJEU; and costs of the parties in seeking a ruling from the CJEU.

Part 1 Overview: Scotland's parliament - "a mini Westminster", or a model for democracy? some constitutional aspects of devolution Scottish politics after the election - towards a Scottish political system? Part 2 The 1999 election and political parties: how Scotland voted in 1999 small parties in a devolved Scotland. Part 3 Inter-governmental relations - Scotland-UK: "layers of democracy" - making home rule work quasi government in Scotland - a challenge for devolution and the renewal of democracy. Part 4 Inter-governmental relations - Ireland-EU-global: new relations between Scotland and Ireland Scotland and the EU - all bark and no Bight? an oxymoron - the Scottish parliament and foreign relations. Part 5 Pressure groups and civic society: redemocratizing Scotland - towards the politics of disappointment? on the Scottish road to sustainability? the Scottish parliament and Scottish culture - the opportunity of a new era. Part 6 Devolution, economics and the UK territorial project: devolution and the political economy of Scotland the politics of devolution France setting the pace - Scotland and the UK devolution project.