2013-09-01
Author | Daniel J Carr,E A Comerford,Martin Hogg,Elspeth Reid,Peter Duff,Michael Allen,James Chalmers,Raphael J Heffron,Darren McCauley,Gordon Cameron,Laura Macgregor,Fiona Leverick |
Pages | 370-419 |
Published date | 01 September 2013 |
DOI | 10.3366/elr.2013.0172 |
Date | 01 September 2013 |
The United Kingdom Supreme Court (“UKSC”) had this to say about a provision of an Act of the Scottish Parliament: The difference in treatment has no logical justification. It is unfair and disproportionate. It is no answer to this criticism to say that there was an urgent need to meet the problem that had been identified. The legislation was intended to have an effect which was permanent and irrevocable. Scotland Act 1998 s 29(2)(d). See also D J Carr, “Not law” (2012) 16 EdinLR 410; M M Combe, “Human rights, limited competence and limited partnerships:
This contextual background is important, for while the UKSC allowed the appeal it did so in a manner that left much of the substance of the Second Division's findings undisturbed – the UKSC only recalled the interlocutor in order to substitute the narrower finding that section 72(10) violated the Convention, and was therefore beyond the Parliament's competence.
Ministerial conduct featured prominently in Lord Gill's opinion in the Second Division.
At para 87.
On proportionality generally, see Lord Reed's important recent (dissenting) opinion in
Interference with a property right must be in the public interest, but national parliaments enjoy discretion in a question with national courts to determine what is in the public interest by virtue of the national courts’ respect for their democratically derived primacy
Human Rights Act 1998 s 2(1)(a). See
To continue reading
Request your trial