Living Apart Together – Is the UK becoming a laboratory for European Private Law?

As the UK moves towards more decentralisation of power, and therefore more power to its component legal systems – referring to Welsh, Scots and Northern Ireland law, and more and more Justices in the Supreme Court are also considering how a certain case would have been resolved in their component legal system (such as the possible outcome of an English case in Scots law written by a Scot’s Justice), the UK is fast on track to position itself as a laboratory for European private law.

It is no secret that Scots law is greatly distinct from English law in many areas. One of these, most notably, is the law of property. With the Abolition of Feudal Tenure (Scotland) Act 2000, the Scots effectively abolished the feudal system of landholding that still reigns (quite literally as the Queen owns all land in England and all others hold land from her in tenure) in English law. As more autonomy is given to national parliaments in Edinburgh, Cardiff and Belfast, this can be expected to result in pluralism rather than uniformity.

With all of these countries remaining part of the United Kingdom, so bound in unity, the UK is set to become perhaps the latest and most modern example of a laboratory of creative private law solutions. Especially because of the influence Scots law brings as a mixed legal system, the mix in the laboratory – perhaps more than ever – includes the diverging common law and civil law divide. New solutions, as for example land reform in Scotland will only increase the differences and hence sometimes ask for joined solutions to cope with these.

European private lawyers should keep a close eye on these development. The same applies for UK private lawyers, as this may just be a very good reason to remain in the European Union and promote their own solution.

(Thanks to Jill Robbie of Glasgow University for the interesting discussion on this and the encouragement to use the title)

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