2013-09-01

Document Cited authorities (23) Cited in Related
AuthorDaniel 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
Pages370-419
Published date01 September 2013
DOI10.3366/elr.2013.0172
Date01 September 2013
<p>The United Kingdom Supreme Court (“UKSC”) had this to say about a provision of an Act of the Scottish Parliament:<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p><italic>Salvesen v Riddell</italic> <a href="https://vlex.co.uk/vid/salvesen-v-riddell-793781157">[2013] UKSC 22</a> at para 44 per Lord Hope of Craighead (with whom Lords Kerr, Wilson, Reed and Toulson agreed).</p></fn> <disp-quote> <p>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.</p> </disp-quote>This is hardly a ringing endorsement of the exercise of the Parliament's devolved powers. In March 2012 the Court of Session had held that <span class="vid_spn">section 72 of the Agricultural Holdings (Scotland) Act 2003</span> violated Salvesen's rights under article 1of the first protocol to the <a href="https://international.vlex.com/vid/convenio-europeo-libertades-fundamentales-67895138">European Convention on Human Rights</a> (“A1P1”).<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p><italic>Salvesen v Riddell</italic> <a href="https://vlex.co.uk/vid/salvesen-v-riddell-802039685">[2012] CSIH 26</a>, 2012 SLT 633 at para 107 per the Lord Justice Clerk (Gill) (hereafter “<italic>Salveson</italic> (IH)”).</p></fn> Section 72 was, therefore, beyond the Parliament's legislative competence<xref ref-type="fn" rid="fn1-3"><sup>3</sup></xref><fn id="fn1-3"><label>3</label><p><a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">Scotland Act 1998 s 29(2)</a>(d). See also D J Carr, “Not law” (2012) 16 EdinLR 410; M M Combe, “Human rights, limited competence and limited partnerships: <italic>Salvesen v Riddell</italic>” 2012 SLT (News) 193.</p></fn> and, as such, was “not law”.<xref ref-type="fn" rid="fn1-4"><sup>4</sup></xref><fn id="fn1-4"><label>4</label><p><a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">Scotland Act 1998 s 29(1)</a>.</p></fn> The Court of Session's interlocutor was not final,<xref ref-type="fn" rid="fn1-5"><sup>5</sup></xref><fn id="fn1-5"><label>5</label><p><italic>Salvesen</italic> (IH) at para 105.</p></fn> nor did it issue one that was final and calibrated to provide a full remedial response to its finding, instead granting leave to appeal to the UKSC on 29 March 2012,<xref ref-type="fn" rid="fn1-6"><sup>6</sup></xref><fn id="fn1-6"><label>6</label><p><italic>Salvesen</italic> at para 30. Leave was required as the case concerns the competence of an Act of the Scottish Parliament, which is a devolution issue: <span class="vid_spn">Scotland Act 1998 Sch 6</span> paras 1(a) and 13(b).</p></fn> thus rendering further procedure in the Court of Session inappropriate. The Second Division's interlocutor, as it stood, declared the entirety of section 72 to be in violation of the Convention, and hence beyond the Parliament's competence.</p> <p>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.<xref ref-type="fn" rid="fn1-7"><sup>7</sup></xref><fn id="fn1-7"><label>7</label><p><italic>Salvesen</italic> at para 58.</p></fn> Confirmation that the impugned provision was in violation of the Convention – and clearly so – is not surprising. However, the case provides the first guidance about what the courts will do when faced with an <italic>ultra vires</italic> Act of the Scottish Parliament.</p> MINISTERS AND PARLIAMENT

Ministerial conduct featured prominently in Lord Gill's opinion in the Second Division.8

Salvesen (IH) at paras 87–96.

In his opinion, it was appropriate to consider statements of ministers to Parliament during the passage of the Agricultural Holdings (Scotland) Bill to assist in identifying the justification behind section 72.9

At para 87.

 Searching for such a justification was a component of the well-known proportionality test in relation to A1P1.10

On proportionality generally, see Lord Reed's important recent (dissenting) opinion in Bank Mellat v Her Majesty's Treasury No 2 [2013] UKSC 39 at paras 68–76; more generally, see A Barak, Proportionality (2012).

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 primacy11

Axa General Insurance Company Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 at para 32 per Lord Hope and para 131 per Lord Reed.

(and not under the margin of appreciation, which is a component of the European Court of Human Rights’ (ECtHR) supranational jurisdiction12

R v DPP ex parte Kebilene [2000] 2 AC 326 at 380E-381D per Lord Hope; Brown v Stott 2001 SC (PC) 43 at 58I-59A per Lord Bingham.

). This much has been clear since James v UK13

James v United Kingdom (1986) 8 EHRR 123.

 demonstrated that the jurisprudence of the ECtHR in this area is premised upon judicial deference to the national authorities’ evaluation of political, economic and social issues.14

Vistiņš and Perepjolkins, App no 71243/01, 25 October 2012 at para 106.

 Domestic courts have, despite not being bound to do so,15

Human Rights Act 1998 s 2(1)(a). See Regina (Ullah) v Special Adjudicator [2004] 2 AC 323, and the recent interpretations in Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at paras 110–114 per Lord Brown; Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486 at para 49 per the Lord President (Hamilton); Achmant v Greece [2012] EWHC 3470 (Admin) at paras 26–27 per Singh J; Richards v Ghana [2013] EWHC 1254 (Admin) at paras 50–52 per Leggatt J. The “Ullah principle”, as developed by the UKSC, is followed by the Scottish courts: “It may be that the ‘Ullah doctrine’ is ripe for reconsideration or reformulation but, given its repeated application in the Supreme Court, it is not for this court to attempt any such reconsideration or reformulation.” Ross v HM Advocate [2012] HCJAC 45 at para 28 per the Lord Justice General (Hamilton).

 followed Strasbourg's lead...

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