1E9Ct5D

VII ScotlandWe are grateful to Anderson Strathern,solicitors in Edinburgh, who prepared thisSection.1. ParliamentScotland has a separate legal system fromEngland and Wales. Since July 1999, Scotlandhas had its own Parliament, based inEdinburgh, although the Parliament and itscommittees have held sittings in other parts ofScotland. The Parliament’s powers are set outin the Scotland Act 1998. It only hascompetence to legislate on what are called‘devolved matters’ and cannot legislate onmatters that are ‘reserved’ to the UKParliament. The reserved matters are listed inSchedule 5 to the Scotland Act.Reserved matters include certain aspects ofthe UK Constitution, many aspects of defenceand foreign affairs, fiscal, economic andmonetary policy, immigration and nationality,data protection, firearms and misuse of drugslegislation, national security, interception ofcommunications and official secrets, mostaspects of insolvency, intellectual property,consumer protection (except food safety),certain aspects of energy and transport, socialsecurity, many aspects of employment law,equal opportunities and professionalregulation, time, outerspace and a number ofother miscellaneous matters.Anything not listed in Schedule 5 is, thereby,devolved and within the Scottish Parliament’slegislative competence.The Scottish Parliament was given limitedpowers in relation to taxation under theScotland Act 1998, enabling it to vary the rateof income tax. However, recent legislationpassed by the UK Parliament in the form of theScotland Act 2012 has devolved new powersin relation to income tax and borrowing. Inaddition, the new Act devolves stamp duty landtax and landfill tax.A referendum is likely to be held in Scotland inthe autumn of 2014 on the question ofindependence for Scotland. Even if the resultis in favour of independence the details ofimplementation would take time to benegotiated and legislated.2. PropertyScottish property law is different from Englishproperty law and it is in relation to property thatcompanies and businesses frequentlyencounter the Scottish legal system. Scottishlaw being a civilian legal system in commonwith most of continental Europe has developedon a different basis from that applicable inEngland and Wales.There is no principle of equity in Scots law withthe result being that contracts will generally beinterpreted literally and strictly according totheir terms. The approach of the Scottishcourts to enforcement of contracts is thatparties will have negotiated terms and each isexpected to honour their obligations. If theresult is inequitable to one party then that isnot material. The result is simply the intent ofthe parties when they negotiated the contract.Scottish legal advice is therefore necessary forcontracts or land transactions of any typeundertaken in Scotland.For most commercial and business propertiesScotland has two types of land holding:• Heritable, where the interest is held inperpetuity but is frequently subject torestrictions or conditions (usually referredto as burdens) enforceable by certainthird parties. This approximates tofreehold in England with restrictivecovenants; and• Leasehold.1. Contracting for propertyScottish property law is designed to ensurethat parties enter into a binding contract at oras near to the outset of the transaction. Thecontract itself will provide the necessarycomfort which the purchaser requires toensure that he obtains good title. It isimperative that any purchaser stipulates whathe requires the seller to produce and the sellermust match that with what he can deliver.Scotland has always been proud of its landtransfer system as being both fast and efficientand therefore bringing certainty to propertydeals at an early stage. The complexity ofmodern land law and the associated issueswhich are now commonly incorporated intoproperty contracts mean that, to some extent,negotiating a property contract is now more aprolonged exercise than in the past. However,where the parties wish, the Scottish legalPAGE 30