HUMAN RIGHTS AND DEVOLUTION
Course Reader:
AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46
Somerville v Scottish Ministers, 2008 SC (HL) 45
Other Readings:
Himsworth and O’Neill, Scotland’s Constitution, ch 12, 13.14-13.26
Boyle et al (eds), Human Rights and Scots Law (2002), chs 1, 2, 3, 5
Reed and Murdoch, Human Rights Law in Scotland (3rd ed.), pp. 65-97
Supperstone, Goudie & Walker, Judicial Review (4th ed.), pp. 839-840
Introduction
If there is a violation of the ECHR in Scotland, it will be found that UK is in violation of the ECHR. The HRA
operates to the same effect in Scotland as it does in the rest of the UK. Thus, Scottish courts can issue
declarations of incompatibility.
Legislative competence of the Scottish Parliament (Scotland Act 1998, s29), including the “purpose” test
(s29(3)).
Remember, in particular, s29(2)(d): A provision is outside the competence of the Scottish Parliament if it
is incompatible with any of the Convention rights.
Pre-Assent scrutiny by the UK Supreme Court (formerly by the Judicial Committee of the Privy Council)
(Scotland Act, s33 in conjunction with Constitutional Reform Act 2005, ss40(4) and schedule 9 para.
96(1))
Post-Assent challenge to the validity of Acts of the Scottish Parliament – legislative competence, vires,
etc.
The parallel operation of the Scotland Act 1998 and the Human Rights Act 1998 – human rights
challenges to Acts of the Scottish Parliament.
Devolution issues
Scotland Act 1998, s98 and Sched 6 – definition of a “devolution issue” including questions of legislative
competence in the case of individual Acts of the Scottish Parliament, together with the relevant
procedures etc. to be followed by reference to questions of competence of Scottish Parliament etc
Course Reader:
AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46
Somerville v Scottish Ministers, 2008 SC (HL) 45
Other Readings:
Himsworth and O’Neill, Scotland’s Constitution, ch 12, 13.14-13.26
Boyle et al (eds), Human Rights and Scots Law (2002), chs 1, 2, 3, 5
Reed and Murdoch, Human Rights Law in Scotland (3rd ed.), pp. 65-97
Supperstone, Goudie & Walker, Judicial Review (4th ed.), pp. 839-840
Introduction
If there is a violation of the ECHR in Scotland, it will be found that UK is in violation of the ECHR. The HRA
operates to the same effect in Scotland as it does in the rest of the UK. Thus, Scottish courts can issue
declarations of incompatibility.
Legislative competence of the Scottish Parliament (Scotland Act 1998, s29), including the “purpose” test
(s29(3)).
Remember, in particular, s29(2)(d): A provision is outside the competence of the Scottish Parliament if it
is incompatible with any of the Convention rights.
Pre-Assent scrutiny by the UK Supreme Court (formerly by the Judicial Committee of the Privy Council)
(Scotland Act, s33 in conjunction with Constitutional Reform Act 2005, ss40(4) and schedule 9 para.
96(1))
Post-Assent challenge to the validity of Acts of the Scottish Parliament – legislative competence, vires,
etc.
The parallel operation of the Scotland Act 1998 and the Human Rights Act 1998 – human rights
challenges to Acts of the Scottish Parliament.
Devolution issues
Scotland Act 1998, s98 and Sched 6 – definition of a “devolution issue” including questions of legislative
competence in the case of individual Acts of the Scottish Parliament, together with the relevant
procedures etc. to be followed by reference to questions of competence of Scottish Parliament etc
