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How Scots law is made

Scotland has its own distinct legal system including its own laws and courts. However, Scots law can be made and changed in several ways and this can be a bit confusing. If you're going to court, or considering taking any other form of legal action, it might help to know how the law in Scotland is made so this section explains more.

The importance of our parliaments

Both the UK parliament in Westminster and the Scottish Parliament in Holyrood can make laws that affect Scotland. Our page on where does Scots law come from explains more about how the two parliaments work together to make law for Scotland.

Court decisions

Why are court decisions important?

As well as the laws that are debated and made by the Westminster and Scottish Parliaments (see above), the courts can also change and make the law. When lawyers talk about 'the common law', they just mean decisions made by the courts that have to be followed (in other words, they are 'binding') in similar cases in the future. The common law affects both civil and criminal cases but, if you've got a housing problem, civil law is most relevant to you.

What effect does a court decision have?

It's important to realise that every court decision will have a different impact. Most decisions will be important only to the people they directly affect, while other decisions will not only affect the people involved in that particular case but will also change the law or make new law.

Generally speaking, decisions of higher courts, such as the Court of Session in Edinburgh, will be the ones that change the law or make new law but decisions in lower courts can also have an impact in some circumstances. Our page on courts will give you a better idea of what the different courts in Scotland are, how they are structured, and how the whole system works in practice. You could also have a look at our downloadable flowchart to see what's what or visit the Scottish Court Service website for more information.

How will a court decision affect me?

If you take your case to court, the decision it makes could have a big effect on you. For example, a court can make a decision about whether you can stay in your house or if you will be evicted. The court can also decide whether your landlord has been acting unreasonably or treated you unfairly. So, a court decision could solve your problem, whether it's a housing problem or another type of problem, for example, if you have a complaint about discrimination.

However, it's important to be aware that the court won't necessarily agree with you and the decision it makes might not be to your advantage (even if this seems unfair to you). In some cases, the court will agree with the person or organisation on the other side of the case. This is one of the risks you take when you go to court. Your lawyer may also advise you not to go to court in certain circumstances. This could be because you are unlikely to win. If you're in this situation, you will have to decide what to do based on the advice you've been given. If going to court isn't the best way forward, you (or your solicitor if you have one) might be able to negotiate an agreement or find another solution.

The options available to the court depend on the problem it's faced with but here are a few examples of decisions it can make. For example, the court can:

  • settle an argument between you and someone else by deciding that one person is right and the other is wrong (including private businesses such as letting agencies who might, for example, be employed by your landlord)
  • order you to do something (for example, pay your rent)
  • order someone else to do something (for example, order your landlord to carry out repairs to your home)
  • order either you, or someone else, to pay a sum of money (for example, ordering the council to pay you compensation and reimburse your court expenses)
  • allow your landlord to evict you
  • tell your landlord not to evict you.

These are only examples and you must speak to a solicitor or contact a law centre for legal advice specific to your case. The page on court decisions also has more information.

How can courts change or make law?

The courts in Scotland have lots of powers to change the existing law and make new laws as well. For example, the courts can:

  • spell out ('clarify') what the law says where it isn't clear
  • redefine the law so that it has a new meaning
  • expand or extend the law to apply to new situations (there have been lots of examples of this in the news in recent years in relation to fertility laws and so-called 'designer babies')
  • make an important statement about the law which other courts have to follow (this is called 'setting a precedent' - there is more information on this further down this page)
  • follow or disagree with decisions made by other courts, legal experts, legal principles and other sources of law.

Very few cases that go to court will change the law. In fact, the decisions made will only affect the people involved in that case because they will sort out the argument between them. However, if your case has some unusual facts in it, or if the existing law isn't clear, the courts can change the law and/or make new laws. They do this by listening to the legal arguments presented by lawyers who appear in court on your behalf. The arguments are put together using the facts of your case and by looking at various different sources of law including:

  • well established legal principles of Scots law
  • any Acts of Parliament or Acts of Scottish Parliament that are relevant to your problem
  • previous decisions made by Scottish courts
  • decisions of courts in other countries (other 'jurisdictions') that might help (these are called 'persuasive authorities'). For example, the decisions of some English courts might be helpful in some cases. The court can also look further afield at decisions of courts in countries abroad in some circumstances
  • what famous and well established lawyers from long ago (called 'institutional writers') have said about the law
  • the opinions of senior lawyers (Advocates) who have been paid to give their opinion (called 'counsel's opinion')
  • the opinions of academic experts.

If there is no clear legal solution to your case, then the court will make a decision on what the law means (by 'interpreting' the law). This isn't a random decision but is based on the knowledge and experience of the judges in the court and also the facts of your case. This can be a very complicated process and the court often has to take a balanced view of complex and conflicting factors.

Every court in Scotland is headed up by either a judge (if the case is in the Court of Session) or a sheriff (if the case is in the sheriff court). Read our page called who's who in court for more information. In appeal courts there is more than one judge. Judges and sheriffs are responsible for deciding what the law is and how it will be applied to your case.

Scotland map Housing laws differ between Scotland and England.
This content applies to Scotland only.
Get advice if you're in England

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