Scottish Human Rights Law Group

The Human Rights Act and Constitutional Dialogue

The Human Rights Act was consciously drafted on the basis of the model provided by the New Zealand Bill of Rights Act.    Like the New Zealand Act its primary concern was to preserve the central constitutional concept of the sovereignty of Parliament while allowing for an enhanced degree of legal protection under domestic law for the fundamental rights set out in the European Convention on Human Rights.

Thus, Section 3(1) HRA obliges public authorities, so far as it is possible to do so, to read legislation in a way which is compatible with Convention rights and to give effect to that legislation in a way which is compatible with those rights. [1] But where it is not possible to read or apply an Act of the Westminster Parliament in a manner which is compatible with Convention rights, Section 3(2)(b) HRA provides that the legislative provisions in question remain fully valid, operative and enforceable: in contrast to the situation where there is an incompatibility with Community law, national courts are not empowered even after incorporation of the Convention to “dis-apply” or suspend primary statutory provisions which contravene human rights.

Section 4 HRA sets up a mechanism for dialogue between the courts and the legislature in the event of an unavoidable conflict between the Convention rights and an Act of Parliament by giving the courts the power to make a declaration as to the incompatibility of this provision with the requirements of the European Convention. [2] This conversation may at times be a spirited one. [3] But any such declaration of incompatibility by the courts has, by virtue of Section 4(6)(a) HRA, no effect on the validity, continuing operation or enforceability of the offending legislative provision.   Further, Section 4(6)(b) HRA provides that any declaration of incompatibility is not binding on the parties to the proceedings in which it is made.     The obtaining of a declaration of incompatibility will therefore be a Pyrrhic victory for the party in whose favour it is granted unless Parliament choose to change the relevant legal provisions with retrospective effect so as to apply in his case.    A final declaration of incompatibility – that is one against which no right of appeal exists or is being exercised – gives Ministers of the Crown the power to order under Section 10(1) HRA such amendment to, or repeal of, the primary or secondary legislation in question as they think is appropriate to remove the incompatibility.   Any such remedial order will require the approval of Parliament under the affirmative resolution procedure, all as set out in Schedule 2 to the Act.     The principle of ultimate Westminster Parliamentary sovereignty is said thereby to be maintained.     As Lord Irvine of Lairg has stated:

“This innovative technique will provide the right balance between the judiciary and [the Westminster] Parliament.   [The Westminster] Parliament is the democratically elected representative of the people and must remain sovereign.   The judiciary will be able to exercise to the full the power to scrutinise legislation rigorously against the fundamental freedoms guaranteed by the Convention but without becoming politicised.    The ultimate decision to amend [primary Westminster] legislation to bring it into line with the Convention, however, will rest with [the Westminster] Parliament.   The ultimate responsibility for compliance with the Convention must be [the Westminster] Parliament’s alone.”[4]

Crucial to any understanding of the constitutional position under the Human Rights Act is the fact that Section 6(2) HRA allows for the possibility of public authorities acting in a way which is incompatible with Convention rights and yet still be acting “lawfully”.   Such lawful Convention incompatible action may result either (a) if the public authority is obliged by one or more provisions of primary legislation so to act or (b) if the public authority is acting so as give effect to or enforce one or more Convention incompatible provisions of, or made under, primary legislation.

House of Lords authority has confirmed that the Section 6(2) HRA defence is the corollary of the Section 4 HRA procedure.   It, too, is founded on the constitutional concept of the UK legislature being able to authorise public authorities to act in a manner which is Convention non-complaint. [5] Thus in Aston Cantlow PCC v Wallbank Lord Hobhouse of Woodborough observed that section 6(2)(b) HRA “covers situations where the public authority was empowered by legislation to act as it did and the intention of the legislation, whilst leaving open a measure of discretion, was that it should use the power provided”. [6]

Finally, Section 11 HRA provides that:

“A person’s reliance on a Convention right does not restrict-

(a)    Any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or

(b)    His right to make any claim or bring any proceedings which he could make or bring apart from Section 7 to 9″.

Thus it is clear from the way in which Section 11(b) HRA is worded that Parliament envisaged that it might be possible for proceedings based on the protection of an individual’s Convention rights to be brought other than in terms of the Human Rights Act.     In Somerville v Scottish Ministers [7] the House of Lords confirmed that, in addition to the Human Rights Act (which defines the legislation produced by the devolved institutions as “subordinate legislation”), the devolution statutes themselves may be directly relied upon against the devolved institutions to seek the full panoply of remedies (including public law just satisfaction damages) in respect of their Convention incompatible actions or omissions.

Convention rights and the limits on the power of the devolved institutions

The three devolution statutes – the Scotland Act 1998 (“SA”), the Northern Ireland Act 1998 (“NIA”), the Government of Wales Act 2006 [8] (“GWA 2006″) – were none of them drafted with a view to preserving any constitutional notion of the legislature’s sovereignty, at least as regards the devolved institutions. [9] The constitutional structure which they embodied was modelled not on the New Zealand Bill of Rights Act but, instead, was modelled on the constitutions created by the Foreign and Commonwealth Office for the newly independent nations emerging from the post World War II transformation of the British Empire into the British Commonwealth.    The new constitution of post-apartheid South Africa was also taken, in part, as a model. [10]

The devolution statutes are all enactments of the Westminster Parliament.  Although their primary impact is upon the various devolved jurisdiction of the United Kingdom, it should not be assumed that they have no relevance to the governance of England and of the Union generally.   In particular, the Scotland Act has been described as “a major constitutional measure which altered the government of the United Kingdom”. [11] But the devolution statues contains quite different constitutional checks and balances from those which form the basis of the Human Rights Act.[12] And most notably, the system under the Scotland Act is predicated on a wholly different constitutional model from the Westminster model; it is one in which judges – rather than the legislature – have the last word.

Neither the Scottish Parliament nor the Welsh or Northern Ireland Assemblies are unlimited sovereign bodies.   They have power to make law only insofar as within the limits of their legislative competence conferred upon them by the particular devolution statutes which set them up.    And not only is it put beyond the legislative competence of the devolved legislatures or administration to pass laws in areas reserved to the Westminster Parliament, but the devolution statutes also provide that the devolved legislatures shall have no power to make legislation which contains a provision which is incompatible with any of the Convention rights specified in Schedule 1 to the Human Rights Acts 1998. [13] And similarly it simply falls outside the devolved administrations or executives’ competence to confirm, approve or make any provision by subordinate legislation or to do any other act which would be incompatible with Convention rights. [14] As Lord Rodger of Earlsferry observed in relation to the relevant provisions of the Scotland Act:

“[W]henever a member of the Scottish Executive does an act which is incompatible with Convention rights, the result produced by all the relevant legislation is not just that his act is unlawful under section 6(1) of the Human Rights Act. That would be the position if the Scotland Act did not apply. When section 57(2) [SA] is taken into account, however, the result is that, so far as his act is incompatible with Convention rights, the member of the Executive is doing something which he has no power to do: his act is, to that extent, merely a purported act and is invalid, a nullity. In this respect Parliament has quite deliberately treated the acts of members of the Scottish Executive differently from the acts of Ministers of the Crown.” [15]

The protection of Convention rights under the constitutional settlement set out in the devolution statues is, then, embedded within the concept of limits on the powers or competence of the devolved authorities. Thus, the Convention compatible interpretative obligation for UK legislation in Section 3 HRA is paralleled, for example, by an interpretative obligation for Scottish legislation in Section 101 SA, for Northern Irish legislation in Section 83 NIA and for Welsh legislation in 154 GWA 2006, both of which refer to limits on legislative competence [16] And Section 101(2) SA, Section 83(2) NIA and Section 154(2) GWA 2006 each enjoin the courts, when faced with devolved primary and subordinate legislation which could be read in such a way as to be outside competence, to read the provision “as narrowly as possible as is required for it to be within competence, if such a reading is possible” and to give effect to it accordingly. [17]

And the “implicit dialogue” provisions between court and legislature set out in Section 4 HRA in relation to Westminster legislation has its parallels in Section 102 SA, Section 81 NIA and Section 153 GWA 2006.    Section 102(2)(a) SA, Section 81(2) NIA and 153(2)(a) GWA 2006 each permit the court to remove or limit the retrospective effect of any finding that devolved legislation is beyond their devolved institutions legislative competence (and hence a nullity).   And Sections 102(2)(b) SA, 81(2)9b) NIA and 153(2)(b) GWA 2006 all allow the court to suspend the effect of its decision on lack of legislative vires for such period and on such conditions as might allow the defect identified by it to be corrected by the relevant devolved legislature. [18] Significantly, however, in none of the devolution statutes is such power or discretion vested in the courts to suspend its decisions in relation to administrative (non-legislative) acts of the devolved administrations.

No Section 6(2) HRA defence for the Scottish Ministers

There is a centrally important feature in the scheme of the Scotland Act in which it differs fundamentally from the other devolution statutes.   Under the Scotland Act the Scottish Ministers are not given the Section 6(2) HRA defence which is otherwise available to public authorities.   No provision is made for the possibility of any ‘lawful’ breach of Convention rights by the Scottish devolved authorities relying upon, or seeking to enforce, Convention incompatible provisions of Westminster legislation, other than under Section 57(3) SA to the Lord Advocate in prosecuting any offence or in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. [19] And to date the Lord Advocate’s Section 57(3) SA defence has rarely been prayed in aid by the Scottish Law Officers before the courts, and never yet successfully. [20]

A general Section 6(2) HRA defence is, by contrast, expressly given to the Northern Ireland devolved institutions [21] and to the Welsh Ministers [22] It is clear from the Parliamentary history that this failure to allow for any Convention incompatible activity on the part of the Scottish Parliament and other member of the Scottish Executive was not a matter of inadvertence or oversight.   The fact that no similar amendment was made in respect of the other Scottish Ministers – or for the Lord Advocate when acting other than as head of Scotland’s criminal prosecution service – shows it was desired and intended by Parliament that the Convention based limits imposed on the powers of the Scottish devolved government would be subject to no exception.

The Scottish Ministers then, unlike any other public body or devolved authority, are bound absolutely as a matter of vires by the requirements of the Convention. Thus, because the Scottish Ministers and Parliament have no section 6(2) HRA defence open to them, a declarator by a court (whether under section 4 HRA or at common law) that a provision of Westminster legislation is incompatible with the requirements of the Convention will have the effect of rendering ultra vires any act or omission of the Scottish Ministers or Parliament which relies upon the Westminster provision in question.   Since all those who hold office by virtue of their effective appointment by the Scottish Ministers within areas of devolved competence are governed by the vires controls of the Scotland Act – rather than by the lawfulness controls of Section 6 HRA – this means that a declaration of incompatibility made under Section 4 HRA has the effect of actually setting specific and particular limits on the power of those Scottish officials.

It is also to be noted in this regard that Section 57(2) SA refers to limitations on the powers of the Scottish Ministers under reference to both European Community law and Convention rights. [23] Because the Scottish Ministers have no Section 6(2) HRA defence, Convention rights have the same effect against the Scottish Ministers as do directly effective provisions of Community law – both render their acts ultra vires.   Thus any Convention incompatible provision of a Westminster statute effectively falls to be “disapplied” as regards the Scottish Ministers, just as any Community law incompatible provision of a Westminster statute is to be disapplied as regards acts of emanations of the UK State. [24] In relation to the assessment of the lawfulness of acts of the Scottish Ministers the Convention is placed on a par with Community law with the result that Westminster statutes are placed in a position which is, from the viewpoint of the Scottish Ministers normatively subordinate to the requirements of the Convention.

In sum although the same substantive Convention rights (those set out in Schedule 1 to the Human Rights Act 1998) have been incorporated throughout the four legal jurisdictions of the United Kingdom, those Convention rights have been given a completely different constitutional status in Scotland from the rest of the United Kingdom.   Under the Scotland Act 1998, the rights guaranteed under the Convention have, in effect, the status of a higher law as against all and any legislation whether passed by the Westminster Parliament or passed by the Scottish Parliament as well as over any act or omission of a member of the Scottish Executive. [25] Scotland’s new constitution under the Scotland Act mandates this new form of “democratic constitution” previously unknown within the context of the United Kingdom, one in which the judges are supreme in the sense that they have the power to strike down as invalid both:

(i)                  legislation which has been duly passed by the Scottish Parliament and

(ii)                acts of the Scottish Ministers, even where these which might otherwise be warranted or authorized under primary Westminster legislation.

Thus the Scotland Act provisions have unequivocally placed the ultimate responsibility for ensuring compliance with the Convention in Scotland with the judges, rather than with the democratically elected Scottish Parliament or the publicly accountable Scottish Ministers.

Co-ordination between the devolution statutes and the Human Rights Act as regards rights under the European Convention.

There is no evidence that Parliament ever intended or envisaged that the Human Rights Act and the devolution statutes be read together as one broad constitutional code.   The reality of the situation was that the Human Rights Bill and the devolution statues were drafted by wholly separate Government departments and were each piloted through Parliament by different Ministers.     Co-ordination between the devolution statutes and the HRA on matters concerning Convention rights was achieved by a limited degree of cross-referral between the terms of the statutes. [26] These co-ordinating provisions are as follows:

(i)                  The phrase “Convention rights” was given the same meaning in the four statutes.[27]

(ii)                In all four statutes, the same “victim status” was required of individual private parties for them to be able to complain of violation of their Convention rights by public authorities and seek an appropriate remedy from the courts. [28] The “victim provisions” in the devolution statues sought to ensure that only the same range of private persons (Article 34 ECHR “victims”) could raise Convention compatibility proceedings action under the devolution statues as were empowered to do so under the Human Rights Act.   But while Section 7(4) HRA makes it plain that only such victims can raise judicial review proceedings under that Act alleging Convention incompatible (in)action by a public authority, the title and interest/standing provisions in the devolution statues were clearly intended to allow the UK law officers also to raise proceedings alleging Convention rights breach by the devolved institutions, even where the law officers could not themselves claim Article 34 ECHR victim status. [29] This is part of the policing role which the law officers are given under the devolution statutes which has no parallel in the Human Rights itself (although the new Commission for Equality and Human Rights has gained such a policing role in Great Britain under the Equality Act 2006).

(iii)               Provision was made in each statute for the possibility of the courts making an award of “just satisfaction” damages payable in respect of a breach of Convention rights. [30] It should however be noted that the Scotland Act provision on just satisfaction damages again differs from the other devolution statutes and the HRA   Because the devolved Northern Ireland and Welsh institutions have been given the complete Section 6(2) HRA defence, the provisions of the NIA and GWA 2006 expressly allow for damages to be awarded for breach of Convention rights only where such breach is also to be regarded as Section 6 HRA “unlawful” (see  Sections 71(3)(b) NIA and 71(4)(b) NIA, and Section 81(4)(b) GWA 2006 respectively).    But precisely because the Scotland Act does not generally allow any Section 6(2) HRA defence to the Scottish Ministers the damages provision in the Scotland Act does not march with the damages provision of the Human Rights Act.   Unlike the damages provisions in the other devolution statutes no reference is therefore made in Section 100(3) SA to Section 6 HRA and the distinction between “unlawful” and “lawful” Convention incompatible action.  Instead the only discrete and specific reference deliberately made is to, and only to the specific “just satisfaction” provision on damages in Section 8(3) HRA (re damages to be awarded only if necessary for “just satisfaction”) and Section 8(4) HRA (ECtHR principles to be applied in determining whether and how much to award by way of damages).

The effect of these cross-referencing provisions was that no matter which statute one might rely upon to make a complaint of Convention incompatible action – whether under the Scotland Act, the Northern Ireland Act, the Government of Wales Act or the Human Rights Act – there would be no difference in the rights which are protected, in the private individuals who can bring this claim, and in the amount of just satisfaction damages which might be awarded under those various statutes.

But this limited and discrete cross-referencing among the four statutes, of course, left open the possibility of different procedures, different courts and different time limits being applicable depending on which statutory route was chosen or was available as the means to seek vindication in respect of Convention incompatible action by the particular public authority responsible therefor.   Thus Section 7(5)(a) HRA imposes a long-stop one year time limit from the date of the act or omission complained of within which court proceedings under that Act alleging breach of Convention rights must be brought.    This is, however, subject to any rule imposing a stricter time in relation to the procedure in question, which means that a claim under section 7(1)(a) HRA pursued by way of judicial review in England and Wales or in Northern Ireland will be subject to the three month time limit normally applicable to judicial review applications in that jurisdiction.  [31] By contrast the question of the time within which an action raising a Convention rights challenge as a devolution issue is left unspecified in the devolution statutes.    The absence of a time-bar provision in the Scotland Act comparable to section 7(5) HRA was pointed out by Lord Reed in his chapter on Scotland in Lester and Pannick. [32] And as Lord Rodger of Earlsferry has noted

“A time limit for taking proceedings is not incompatible with the Convention.  Under article 35(1) an application to the European Court of Human Rights must be made within six months from the date when the final domestic decision was taken.  Similarly, under section 7(5) of the Human Rights Act 1998 proceedings against a public authority for an alleged violation of Convention rights must be brought within the period of one year beginning with the date when the act complained of took place, or such longer period as the court or tribunal considers equitable having regard to all the circumstances.  This is subject to any rule imposing a stricter time limit in relation to the procedure in question.  Since the Scotland Act does not specify any time within which proceedings are to be taken, the ordinary rules relating to the procedure adopted to vindicate the right in question must apply. [33]

And there are no time limits applicable to judicial review procedure in Scotland – this matter being left to the discretion of the court under the existing common law principles of mora – [34] and there is no Scottish authority in which a petition for judicial review has been refused on the ground of delay alone, in the absence of evidence of acquiescence by the pursuer or prejudicial reliance on this delay on the part of the defender. [35] This therefore leaves the acts of the Scottish administration and legislature potentially open to challenge for an indefinite period.    As Lord Hope of Craighead – speaking in his capacity as legislator member of the House of Lords- observed in the House of Lords as the Scotland Bill was being debated

“One has only to look at the devolution issues listed in paragraph 1 of Schedule 6 to see the scope which will exist for challenges to be made. No time limit is set for the making of those challenges. As has been pointed out by several noble Lords, there is to be no revising chamber. So in theory at least – I stress the word theory  – subject to the exercise of the powers given to the court in Section 93 to vary retrospective decisions, legislation by the Scottish parliament could be set aside as not being within that parliament’s competence long after it had been put into effect.”[36]

It is then clear that the Convention rights protection afforded by the original 1998 devolution statutes was in no way dependent upon the Human Rights Act being brought into force.  The Convention rights’ limits on the powers of the devolved assemblies and executives existed independently of the provisions of the Human Rights Act.[37] As is well known the Scotland Act was in fact brought into force in the first half of 1999, at least 15 months before the coming into force of the Human Rights Act in October 2000.  Throughout this period claims were brought in Scotland under the Scotland Act in respect of the Convention incompatible actions of the Scottish Ministers and the full range of remedies was granted by the Scottish courts thereanent.      As Lord Hope noted in Brown v. Stott:

“Prior to the coming into force of the Human Rights Act 1998 on 2 October 2000 (SI 2000/1851), the only way of safeguarding a person’s Convention right to a fair trial under the devolution settlement was by challenging the acts of the prosecutor.  Parliament had chosen to give effect to the international obligations of the state under the Convention when it enacted the Scotland Act 1998 by imposing corresponding limits on the competence of the Scottish Parliament and the powers of the Scottish Executive.  The system for the determination of devolution issues which was laid down in that Act was designed to ensure that a remedy was available in domestic law for any infringement of a person’s Convention rights as soon as the relevant provisions of the Scotland Act 1998 were brought into force on 6 May 1999 (SI 1998/3178).” [38]

The introduction of the devolutionary settlement within the UK was not intended by Parliament to be dependent upon the coming into force of the Human Rights Act.   Nothing in the original 1998 devolution statutes required the Human Rights Act to be brought into force before the Convention rights provisions of the devolution statute might work and have effect within the context of the respective devolution settlements introduced by each of the statutes.[39]

The remedial schema for Convention incompatible action in the devolution statutes

Whereas under Section 8(1) HRA the courts are given a discretion as to what remedy, if any, to afford an individual whose Convention rights have been violated by a public authority, [40] the courts have found that there is no such discretion where Scottish Ministers have acted in a manner which is incompatible with Convention rights.  This is because the courts have consistently held that the effect of Section 57(2) SA is to deprive the Scottish Ministers of all power to act incompatibly with Convention rights and therefore any purported act in contravention of a Convention right is ultra vires.[41] Sections 24(1)(a) and 81(1) GWA 2006 are the parallel provisions to Section 57(2) SA and so it would seem that the same principle applies to the Convention incompatible acts of the devolved administrations in Northern Ireland and Wales (unless saved by Section 6(2) HRA).  Such Convention incompatible action is void and, in principle, of no effect, not only in relation to the particular individual establishing violation of his or her rights, but contra mundum.

As has been observed, within the context of the new constitutions for the devolved nations and provinces of the United Kingdom the judiciary have therefore been handed rather different constitutional tools from those provided to the judges under the Human Rights Act.    The devolution statutes provision for a vires control of the Convention incompatible acts of the devolved authorities might be criticized insofar as it prevents the judges from “fashion[ing], more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system”.  [42] But, as Lord Rodger of Earlsferry has noted:

“In enacting a constitutional settlement of immense social and political significance for the whole of the United Kingdom, Parliament has itself balanced the competing interests of the Government of the United Kingdom, of the Scottish Executive, of society and of the individuals affected. Having done so, Parliament has decided that members of the Scottish Executive should have no power to do acts that are incompatible with any of the Convention rights. …   If this is to use an axe rather than a scalpel, then Parliament has selected the tool. Your Lordships’ Board cannot re-open the exercise that Parliament undertook and re-balance the competing interests for itself. Rather, it must loyally give effect to the decision of Parliament on this sensitive matter, even if – or perhaps especially if – there are attractions in a different solution …” [43]

Author:  Aidan O’Neill QC

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[1] See Ghaidan v Godin-Mendoza [2004] 2 AC 557 per Lord Rodger of Earlsferry at para 107 page 595

[2] See for example Smith v. Scott, 2007 SC 345, RAC/IH in which the Registration Appeal Court pronounced  a declaration of incompatibility in relation to the maintenance of blanket ban on voting by convicted prisoners set out in Section 3 of the Representation of the People Act 1983

[3] See, for example, A v Secretary of State for the Home Department [2005] AC 68, per Lord Bingham of Cornhill at 110-1 paragraph 42 and per Lord Hoffmann at 132 paragraph 97

[4] Lord Irvine of Lairg “The Development of Human Rights in Britain under an incorporated Convention on Human Rights”  [1998] Public Law 221-236 at 225

[5] R v. Kansal (No. 2) [2002] 2 AC 69, HL per Lord Hope at paragraph 88

[6] Aston Cantlow PCC v Wallbank [2004] 1 AC 546 per Lord Hobhouse of Woodborough at para 93.  See too Regina (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, HL per Lord Hoffmann at 1696 para 51:

“51 [T]he evident purpose of section 6(2) [HRA], … was to preserve the sovereignty of Parliament: see Lord Nicholls of Birkenhead in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, para 19.  If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation.”

and per Lord Hope at 1700 para 70:

“70    Paragraphs (a) and (b) [of Section 6(2) HRA] both qualify the basic principle in section 6(1) [HRA] that it is unlawful for a public authority to act in a way that is incompatible with the Convention rights.  The purpose of these paragraphs is to prevent section 6(1) [HRA] being used to undermine another of the Act’s basic principles.  This is that in the final analysis, if primary legislation cannot be interpreted in a way that is compatible with them, parliamentary sovereignty takes precedence over the Convention rights.  As section 3(2)(b) and (c) [HRA] makes clear, the validity and continuing operation or enforcement of primary legislation, and of subordinate legislation too where the removal of the incompatibility is prevented by primary legislation, is unaffected by the Act if it cannot be read and given effect in a way which is compatible with the Convention rights: see also section 4(6)(a) [HRA].”

[7] Somerville v Scottish Ministers¸2008 SC (HL) 45; [2007] 1 WLR 2734, HL

[8] As part of a process of on-going or rolling devolution, the original Government of Wales Act 1998 was replaced by the Government of Wales Act 2006 which gave greater legislative autonomy to the Welsh assembly and administration on a model similar to that which had from the outset been afforded the Scottish Parliament and Scottish Ministers under the Scotland Act 1998.

[9] See Whaley and others v. Lord Watson of Invergowrie and The Scottish Parliament,  2000 SC 340, IH per Lord Rodger at 348H, 350B-C:

“[T]he [Scottish] Parliament [i]s a body which – however important its role – has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers.   If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation.  In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law

[...]

While all United Kingdom courts which may have occasion to deal with proceedings involving the Scottish Parliament can, of course, be expected to accord all due respect to the Parliament as to any other litigant, they must equally be aware that they are not dealing with a Parliament which is sovereign: on the contrary, it is subject to the laws and hence to the courts.   For that reason, I see no basis upon which this court can properly adopt a ‘self-denying ordinance’ which would consist in exercising some kind of discretion to refuse to enforce the law against the Parliament or its members.    To do so would be to fail to uphold the rights of other parties under the law.”

[10] See for example Section 102 SA and Article 172(1) of the Constitution of South Africa

[11] R v. HM Advocate 2003 SC (PC) 21 per Lord Rodger of Earlsferry at 60 paragraph 16

[12] See Somerville and others  v. Scottish Ministers [2005] CSOH 23 per Lady Smith at paragraph 51:

“[T]here is a clear constitutional framework within the Scotland Act to deal with the situation where a member of the public claims that a Scottish Minister has failed in his constitutional obligation to act in accordance with the Convention and it contains a self contained system of checks and balances which do not apply to claims under the Human Rights Act.  It is impossible to resist the conclusion that Parliament intended the two types of claim to be treated differently.”

[13] See for example: Section 29(2)(d) SA; Section 6(2)(c) NIA; and Section 108(6)(c) GWA 2006.

[14] See for example: Sections 57(2) SA; Section 24(1)(a) NIA; and Section 81(1) GWA 2006

[15] R v. HM Advocate 2003 SC (PC) 21 per Lord Rodger of Earlsferry at 64

[16] See DS v. HM Advocate [2007] UKPC D1, 22nd May 2007 per Lord Hope at paragraphs 21-24

[17] See McCall v. Scottish Ministers, 2006 SC 266.   These provisions also parallel and reflect the provision common in Commonwealth constitutions enjoining the courts to read statutes which appeared on their face to be incompatible with constitutional rights “with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the constitution”.   See Rojas v Berllaque (Attorney General for Gibraltar intervening) [2004] 1 WLR 201, Lord Nicholls observed at 208-209, para 24:

“Paragraph 2 of the transitional provisions [which states 'the existing laws ... shall be construed with such modifications ... as may be necessary to bring them into conformity with the Constitution'] imposes a far-reaching obligation on courts.  As noted in Director of Public Prosecutions of Jamaica v Mollison [2003] 2 AC 411, 425-427, paras 16-17, this type of obligation goes beyond the limits of construction of statutes as usually understood.  In the usual course the process of construction involves interpreting a provision in a manner which will give effect to the intention the court reasonably imputes to the legislature in respect of the language used.  The exercise required by these transitional provisions is different. The court is enjoined, without any qualification, to construe the offending legislation with whatever modifications are necessary to bring it into conformity with the Constitution.”

[18] As the explanatory notes to the Scotland Act 1998 prepared by the Scotland Office (available from Westlaw Law in Force) make plain (at page 275) this Scotland Act provisions was explicitly modelled on Article 172(1) of the Constitution of South Africa, a constitution based squarely on the principle of constitutional dialogue between courts and legislature but ultimately relying upon judicial primacy in the protection of fundamental rights.   Minister of Home Affairs v. Fourie (2006) 20 BHRC 368 provides an example of the use of Article 172(1) by the South African Constitutional Court.

[19] See House of Lords Hansard 28 October 1998 at Columns 2041-2042 per the then Lord Advocate, Lord Hardie:

“Amendment No. 145F ensures that the Lord Advocate is able to rely on the protection afforded by Clause 6(2) of the Human Rights Bill when he is prosecuting an offence or acting in his capacity as head of the systems of criminal prosecution and investigation of deaths.    Clause 6 of the Human Rights Bill provides that it is unlawful for a public authority which would include the Lord Advocate to act in a way that is incompatible with a convention right. Clause 6(2) provides that it is not unlawful if the act of the public authority was because it could not have acted differently as a result of primary legislation or the public authority was acting to give effect to provisions made under primary legislation. This is intended to protect a public authority where a Westminster Act required it to breach a convention right. The amendment ensures that this protection is also afforded to the Lord Advocate where it is alleged that he has breached Clause 53(2) of the Scotland Bill [now Section 57(2) SA] which requires him to act compatibly with the convention rights. This ensures that the Lord Advocate could prosecute an offence contained in a UK Act even if it were in contravention of a convention right. Without the amendment the offence could be prosecuted by the Crown Prosecution Service in England but not by the Lord Advocate. The amendment also allows him to act in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland if he is acting as required by a provision of the UK Act. Without the amendment disapplying Clause 53(2) he could not act in this way. … What is being contemplated – I am not sure that I can think of a specific example – is United Kingdom legislation which creates an offence but which itself was contrary to the convention. …. If an offence were created across the United Kingdom under a UK statute it would be appropriate that one of the considerations for the Lord Advocate would be whether he or she wished to prosecute in Scotland for that offence. Just as the Crown Prosecution Service in England could prosecute, it would be invidious if the Lord Advocate were precluded from prosecuting for the statutory offence under the United Kingdom Act simply because it contravened the convention right.    At this stage, I am unable to think of specific examples.”

[20] See: Starrs v Ruxton 2000 JC 208 per the Lord Justice-Clerk Cullen at p 231B-C; Lord Reed at p 256A ; Brown v. Stott, 2000 JC 328 per the Lord Justice General, Lord Rodger of Earlsferry at 334; and Millar v. Dickson, 2002 SC (PC) 30 per Lord Bingham at 43D-E, Lord Hope at 55A-D, per Lord Clyde at 60H.     See too the discussion of these provisions by the Inner House and the criminal appeal court respectively in X v. Scottish Ministers and others, 2007 SC 631 and Dickson (Kenneth Robert) v HM Advocate 2008 SLT 12.

[21] In the case of the Northern Ireland Assembly by Sections 71(3)(a) NIA.   In the case of a Minister or Northern Ireland Department by Section 71(4)(a) NIA.

[22] See Section 81(4)(a) GWA 2006

[23] See Aidan O’Neill “The constitutional supremacy of Community Law in the United Kingdom after the Human Rights Act” in de Sousa and Heusel (eds.) Enforcing Community law from Francovich to Köbler: twelve years of the State liability principle Volume 37 Academy of European Law, Trier, Germany (ERA, 2004) pages 87-116

[24] See R v. Secretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 AC 603

[25] See Aidan O’Neill: “Fundamental Rights and the Constitutional Supremacy of Community Law in the United Kingdom after Devolution and the Human Rights Act” (2002) Public Law 724-742

[26] One may note in this regard Lord Hardie when, as Lord Advocate, promoting the Scotland Bill through the House of Lords (HL Hansard 2 November 1998, Column 79)

“[It] is intended to bring the Scotland Bill more into line with the Human Rights Bill in certain limited respects.  It is not intended that the Scotland Bill should be brought so completely into line with the Human Rights Bill that it destroys the common procedures for dealing with devolution issues no matter in which legal proceedings they arise and for determination ultimately by the Judicial Committee [of the Privy Council].”

[27] See: Section 1(1) HRA; Section 126 SA; Section 98 NIA; and Section 81(6) GWA 2006

[28] See: Sections 7(1) and 7(7) HRA; Section 100(1) SA; Section 71(1) NIA; and Section 81(2) GWA 2006

[29] See Section 100(2) SA; Section 71(2) NIA; and Section 81(3) GWA 2006

[30] See: Section 8 HRA; Section 100(3) SA; Section 71(3)(b) NIA; and Section 81(4)(b) GWA 2006

[31] Lester & Pannick, Human Rights Law and Practice, paragraph 2.7.5, footnote 4. The rule is CPR 54.5(1).

[32] Lester and Pannick – Human Rights Law and Practice at paragraph 5.79

[33] Robertson v. Higson, 2006 SC (PC) 22 per Lord Rodger of Earlsferry at paragraph 28:

[34] See, for example, King v East Ayrshire Council, 1998 SC 182, IH per Lord President (Rodger) at 196

“It is recognised that the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision for any longer than is necessary in fairness to the person affected by it”.

See, too, Swan v Secretary of State for Scotland, 1998 SC 479, IH.

[35] In R (Burkett) v. Hammersmith LBC [2002] 1 WLR 1593, Lord Hope of Craighead summarised the Scottish position thus at paragraphs 63-64:

“The principal protection against undue delay in applying for judicial review in Scotland is not to be found … in any statutory provision but in the common law concepts of delay, acquiescence and personal bar: see Clyde & Edwards, Judicial Review, para 13.20.  The important point to note for present purposes is that there is no Scottish authority which supports the proposition that mere delay … will do.  It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice: … none of the cases in Scotland provide support for a plea of unreasonable delay, separate and distinct from a plea of mora, taciturnity and acquiescence, in answer to an application for judicial review.”

[36] See Lord Hope of Craighead House of Lords Hansard 17 Jun 1998: Column 1638

[37] See Clancy v. Caird, 2000 SC 441, IH per Lord Penrose at 473, paragraph 9 of his judgment

“Section 57(2) SA is concerned with a further specific limitation on the powers of the [Scottish] Executive expressed by reference to the Convention and Community law.    It is not a temporary or transitional provision.    It will continue to apply after the Human Rights Act comes fully into force.”

[38]Brown v. Stott, 2001 SC (PC) 43 per Lord Hope at 69

[39] See Section 129 SA, Paragraph 1 of Schedule 14 to the NIA and Section 153(2) GWA 1998

[40] Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 per Lord Rodger of Earlsferry at page 132 para 175

“These provisions [of section 8 HRA] indicate that the courts are meant to mould their remedies for unlawful acts to fit in with the requirements of the Convention.  By contrast, there is nothing to suggest that Parliament ever intended that under the Human Rights Act 1998 the British courts should be obliged to grant a specific remedy for a particular kind of violation where that remedy was not specified by the Convention or where that remedy would not be just and appropriate in the circumstances.”

[41] Dyer v. Watson, 2002 SC (PC) 89 per Lord Millett at paragraph 131:

“[T]he European Court [of  Human Rights] … is not obliged to grant a remedy once a breach of a Convention right has been established; [n]or in England, where the court has a discretion to make such order as it ‘considers to be just and appropriate’.  But …in Scotland … Section 57(2) of the Scotland Act 1998 imposes a vires control by providing that the Lord Advocate has no power to act in a way which is incompatible with an accused’s Convention rights.  If the Lord Advocate threatens to exceed his powers, there is no discretion to withhold a remedy.

[42] This is the description of the judge’s role under the Canadian Charter of Rights and Freedoms by L’Heureux-Dubé J in R v O’Connor [1995] 4 SCR 411 at p 461 para 69 which is quoted with approval by Lord Steyn in H.M. Advocate v. R 2003 SC (PC) 21 at 30 para 18 who then continues:

“The moral authority of human rights in the eyes of the public must not be undermined by allowing them to run riot in our justice systems. In working out solutions under the Scotland Act 1998 and the Human Rights Act 1998 courts in Scotland and England should at all times seek to adopt proportionate remedies. In my view there is nothing in the open-textured language of section 57(2) SA, read in context, which rules out the application of such an approach in this case.”

[43] H.M. Advocate v. R 2003 SC (PC) 21 per Lord Rodger of Earlsferry at 73 para 50.  See too Sinclair v. HM Advocate 2005 SC (PC) 28 per Lord Hope at 40-41, para 37:

“Sec 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. As Lord Rodger of Earlsferry observed in R v HM Advocate (para 155) it is not open to the court if this subsection is breached to assess what the consequences of any particular violation of an individual’s Convention rights should be. Parliament has decided that members of the Scottish Executive, including the Lord Advocate, should have no power to do acts that are incompatible with any of the Convention rights.”

Commentaries