Legal Updates
Challenging Acts of the Scottish Parliament
It is still novel to try to strike down an Act of the Scottish Parliament ("ASP") despite more than a decade having passed since the Scotland Act 1998 was made by the Westminster Parliament. Until April of this year there had been only two attempts to challenge the validity of an ASP. The first was in 2001 when, in A v The Scottish Ministers 2001 SLT 1331, a detained patient challenged the validity of a provision in the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. The second was the well reported foxhunting case, Adams v Scottish Ministers 2003 SC 171, in which it was argued that the Protection of Wild Mammals (Scotland) Act 2002 was beyond the legislative competence of the Scottish Parliament. Both cases were ultimately unsuccessful with the validity of the legislation being confirmed by the Judicial Committee of the Privy Council.
Brodies are currently acting in the third attempt to strike down an ASP. A judicial review has been brought by four insurers challenging the Damages (Asbestos-related Conditions) (Scotland) Act 2009. The purpose of the legislation is to reverse a decision of the House of Lords that certain asbestos related conditions which had no symptoms were not a personal injury for the purposes of the law of delict (tort). The case is presently being heard in the Outer House of the Court of Session.
The Scottish Parliament is of course fundamentally different from that at Westminster. It is a creature of statute and its powers are set out in the Scotland Act, as are restrictions on its competence to enact legislation. Under section 29(1) of the Act, an ASP "is not law" to the extent that it is outside that competence. Section 29(2) of the Act lists circumstances in which an ASP would be outside that legislative competence, including, where it relates to matters reserved to Westminster (for example defence and national security) or where it is incompatible with the ECHR or EU law. If an ASP is claimed to be outside the legislative competence of the Parliament this amounts to "a devolution issue".
There are (at least) two routes by which a challenge may be brought: either by (1) raising judicial review proceedings in the Court of Session or (2) raising the devolution issue as a collateral issue within other proceedings. Judicial review is the traditional means by which the acts or decisions of public bodies may be challenged and is the more usual course for challenging the validity of ASPs.
Devolution issues raised in ordinary actions can be just as effective. Although they may be viewed in one sense as ancillary to the other proceedings, the devolution point may ultimately become the most important issue in the case. Also, a devolution issue may be raised in a number of similar actions in respect of the same Act of the Scottish Parliament which could result in inconsistency and confusion. The Scotland Act provides mechanisms for dealing with these sorts of situations, for example by enabling actions raised in sheriff courts to be referred to the Inner House of the Court of Session where those cases could be conjoined.
Where a person seeks to challenge an ASP on the grounds that it is incompatible with their Convention rights, they must show that they are a "victim" for the purposes of Article 34 of the European Convention on Human Rights. In assessing whether a person is a "victim", the test applied is whether or not that person is "directly affected" by the legislation. That person may also be required under the ordinary rules of 'standing' to show that they have title and interest to bring the action. Adams v Scottish Ministers provides that when challenging an ASP the correct Respondent is the Lord Advocate but the action should also be served on the Advocate General who represents the interests of the UK Government. The Advocate General may but is not required to become involved.
Ultimately it is for the courts to determine whether an ASP is outside the legislative competence of the Scottish Parliament. The Scottish Parliament has legislated in a number of areas recently which have in some cases, and may in others, result in challenges being brought.
This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact one of the lawyers named above.
© copyright Brodies LLP 2010
