Where does Scots law come from?
Scotland has its own distinct legal system including its own laws and courts. However, Scots law comes from a variety of sources 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 what the law is based on.
Why does it matter?
The law in Scotland has a long and complicated history. Although it is a distinct system, it has developed from a variety of sources. Some of the laws in Scotland are different from those in England and Wales. This page outlines the main sources of Scots law. This will help you to understand where the law comes from if you ever have to deal with lawyers or go to court.
Lawyers study legal principles and other sources of law in a lot of detail at university and discuss what they mean in a modern world. The basic principles remain the same but the situations that they apply to change as the world we live in changes. For example, we didn't use mobile phones twenty years ago and computers were much more scarce. Now, most people have a mobile and people use computers every day at home, work, school, in libraries and internet cafes. Lots of information is available to all of us because of these improvements in technology and the law has to try to keep up with all of this.
Housing law has also changed a lot as the type and number of houses available changes. In fact, the Scottish Parliament has promised that everyone will have a home by the year 2012. The law has to try to keep up with all these different developments.
Roman law and legal principles
Scots law has a complicated history that goes back as far as Roman times. This is important for modern law in Scotland because it explains a lot about some of the legal principles we have today. Roman law principles were used to develop Scots law (see 'institutional writers' below).
Roman law was basically a system of 'rights' and 'obligations'. In other words, the law gave people certain rights to things but, in return, they had certain duties to fulfil (these are called 'obligations'). These basic principles are applied to all sorts of different situations in modern day courts in Scotland.
This is quite different from the history of law in England. In England, law was developed using the decisions of judges in specific cases (this is called 'common law'). However, much of the law in Scotland and England today is similar.
Scots law of contract is a good example of a modern law that was originally based on Roman law. So if, for example, you have bought a bed for your house from a local shop and you've agreed to pay for it over a period of time, you've entered into a legal contract. If there is any disagreement about what you've agreed, the law of contract could be used to find a legal solution.
Another example is if you are suing your landlord because your baby has developed asthma because of damp in your flat. You could be suing your landlord under lots of different laws but your solicitor might argue that your landlord owed you and your baby a legal 'duty' to keep the flat free from damp. This is an example of an obligation the landlord has to you.
Both these examples show how the principles of Roman law are relevant to modern law in Scotland and how they might be able to help you with your housing problems.
Lawyers in the 17th and 18th centuries (called 'institutional writers') wrote books setting out the principles on which Scots law is based. Many of these principles were based on Roman law (see above). Lawyers in Scotland today still look at what the institutional writers said about the law and apply these principles to modern day situations.
There are several institutional writers but the main ones are Stair, Bell and Erskine.
Courts and case law
The courts, both in Scotland, England, and also some European courts, are another source of Scots law. The courts are very important in the Scottish legal system because they can change the law. Our page on how law is made has more information.
The UK parliament
The UK parliament makes laws called 'Acts of Parliament'. Proposed laws are debated and approved by parliament then draft laws (called 'Bills') are written down. Bills are then considered in detail by parliament. Bills can change substantially when going through parliament. Bills eventually become Acts and are then brought into force officially by the Queen.
You are more likely to hear Acts of Parliament being called 'statutes'. Statutes set out what the law is in numbered paragraphs called 'sections' and 'schedules' and, sometimes, several statutes have to be looked at to find out what the law says. It can be a very complicated process.
The basic process is that the government suggests a new law, which is then debated in parliament. The changes pushed forward by the government are heavily influenced by their political beliefs and policies. So, when you vote for a political party at an election, it's important to think carefully about whether you agree with what their policies are.
The parliament for the UK is based in London at Westminster. You can visit the UK parliament website if you want more information. The parliament in Westminster can pass laws that either affect the whole of the UK or only certain parts of it, including Scotland. In fact, they have total control over some areas of law that affect Scotland. You can read more about this is the section called 'Acts of Scottish Parliament' below.
The Scottish Parliament
In 1999, a new Scottish Parliament was set up for the first time in hundreds of years. The Act also created the Scottish Executive, now called the Scottish Government. The UK parliament gave the new Scottish Parliament some powers to make their own laws on certain topics.
The Westminster or UK parliament (see 'Acts of Parliament' above) did this by passing a law (the Scotland Act 1998) saying that Scotland could set up and run its own parliament. It was a huge development for Scottish politics and also Scots law. However, it's worth remembering that the Scottish Parliament only exists because of a law passed by the UK parliament. This means that the UK Parliament has ultimate control of the Scottish Parliament, including the power to dismantle it. It's also important to be aware that Scotland is not 'devolved' or separate from the rest of the UK - some legislative powers have simply been devolved to the Scottish Parliament. The UK parliament still makes lots of laws that affect Scotland.
Round about the same time, Wales was also allowed to set up its own parliament (called 'the Welsh Assembly') but it cannot make their own laws. The two systems in Scotland and Wales are different and have different powers.
The Scottish Parliament is based in Edinburgh at Holyrood. Have a look at the Scottish Parliament website if you'd like more information.
The Scottish Parliament has the power to make its own laws (called 'Acts of Scottish Parliament' or 'ASPs') that affect Scotland. However, it can only make laws on certain areas. These areas are specified in the Scotland Act and are called 'devolved issues'. For example, the Scottish Parliament can make laws on housing issues but it can't make laws on housing benefit (this is because social security is a 'reserved matter', which means that the UK Parliament has control of it). The Scottish Parliament has complete authority over the areas that are devolved.
Laws affecting Scotland can either be made in the Westminster parliament in London or the Scottish Parliament in Edinburgh. People living in Scotland have to stick to laws made by both parliaments and both are equally valid.
Human rights law
Everyone is talking about 'human rights' these days. There's a lot in the news about it, and lots of controversy too. It's important to understand that 'human rights' in the law have a very specific meaning. Your human rights could help you if you are making a complaint about the way you've been treated by a public body (such as a council) or if you're taking a case to court. It depends on the circumstances.
The European Convention of Human Rights (ECHR) was set up in the 1950s. It gave everyone a set of basic human rights, including the right to a private life and the right to freedom of speech. Although the government had a responsibility to make sure that the ECHR rights were upheld in the UK, they could not be enforced in cases in the UK courts. If you wanted to prove that your ECHR rights had been breached you had to take your case to the European Court of Human Rights in Strasbourg. This was a long and expensive process and only a small number of cases got that far.
However, this was changed when the Human Rights Act 1998 came into force in the UK. This brought ECHR rights into UK law and means that people who feel that their rights have been breached by a public body can have their case heard in a British court, rather than having to go to Strasbourg.
The Act was a very important change in the law and is now a significant source of UK law, including Scots law. It means that all public bodies, such as local councils, the police, health authorities and schools must comply with the ECHR in everything that they do. It also means that both the UK and Scottish parliaments have to respect and take into account people's human rights when making new laws. Courts across the UK also have to do this when deciding on cases and interpreting the law.
As well as this, the Scotland Act 1998, which created the Scottish Parliament and the Scottish Executive (see 'the Scottish Parliament' above), says that the Scottish Parliament has to make sure that all laws it passes comply with the ECHR. So, if you feel that any law passed by the Scottish Parliament, or any policy of the Scottish Government, breaches your human rights under the ECHR, you can go to court. If the court agrees with you, the law can be struck down or the Government can be made to change its policy. So these laws are very important.
When the Act first came into force, the courts had to look at what it meant for the first time and a lot of court decisions were affected by the change in the law. The courts made some controversial changes to the law (you can find out how court decisions affect the law by reading the section called 'courts and case law' above). For example, you may have read about the case in which someone claimed that he did not get his right to a fair trial because the judge had been appointed by the same person who ran the prosecution service. This led to a change in the law about how certain types of judges are appointed. There were several important legal points in that case and it was all to do with human rights. This example shows how important human rights have been, and still are, to the development of Scots law today. Your human rights could form an important part of your case if you go to court, depending on what your case is about.
For more information, please see also the page on human rights in our section on discrimination.
European law is very complicated and is a specialised area in its own right. However, it is another source of Scots law because it was brought directly into UK law by the European Communities Act 1972. We've included it here just to complete the picture of how Scots law is made but European law is unlikely to be relevant if you have a housing problem. If it is relevant, your solicitor will be able to give you appropriate advice.
Last updated: 29 December 2014