Human Rights & Devolution Cases

Question 1

Whaley v Watson (2000)

Answer 1

• Scottish parliament has been created by UK parliament, thus must act within scope of powers like any other public bodies
• If it doesn’t court can intervene and require it to do so
• “[The Scottish Parliament is 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.” [per Lord Rodger]

Question 2

AXA case (2011)

Answer 2

• Common law grounds of JR don’t apply to Scottish parliament (can only bring action under s. 29 SA 1998)
• SO is not just any public body, so if you want to challenge an act of Scottish parliament it must be under s. 29
• But: would be open to the courts to strike down an Act of the Scottish parliament if such an act was contrary to fundamental rights of the rule of law
• “It cannot however be assumed that the grounds upon which the lawfulness of an Act of the Scottish Parliament may be reviewed include all, or any, of the grounds upon which the Court of Session may exercise its supervisory jurisdiction in other contexts” (Per Lord Reed)

Question 3

Cameron v Procurator Fiscal (2012)

Answer 3

• Statute imposed additional bail conditions, court found that these breached art. 5
o Struck down

Question 4

Salvesen v Riddell (2012)

Answer 4

• Issue was complicated land law
• Statute at stake held to be a violation of article 1, protocol 1
• Used s. 102 -> suspended effect of statute for 12 months to give them a chance to fix it

Question 5

Christian Institute & Ors v Lord Advocate (Scotland) (2016)

Answer 5

• SC struck down “named person” scheme under art. 8

Question 6

Somerville v Scottish Ministers (2008

Answer 6

• Time limits -> one year time bar in HRA (s. 7 (5) (a))
• But not in SA 1998 for “devolution issues”
• HoL: one year time limit does not apply to the proceedings as drafted because the petitioner’s case was that the acts of the Scottish ministers were outside the limits of their devolved competence
• Scottish government didn’t like this…
• Passed Convention Rights Proceedings Amendment (Scotland) Act 2009
o One year time limit to bring action on devolution issue challenges