Human Rights Act reform consultation: Scottish Government response

15. Should the courts be able to make a declaration of incompatibility for all secondary legislation, as they can currently do for Acts of Parliament?

240. No. A change of the kind suggested would be constitutionally unacceptable.

241. The effect would be to treat secondary legislation, made by ministers, as if it were equivalent to primary legislation made by the legislature. The power to make secondary legislation is merely delegated to ministers and it is a central principle of constitutional democracy and administrative law in the UK that executive actions can be challenged, and if necessary overturned, in the courts.

242. This proposal therefore amounts to an attempt by current UK Government ministers to place themselves above the law and to confer on themselves a supremacy, and immunity from challenge, which the UK constitution allows only for primary legislation i.e. Acts of Parliament.

243. More generally, the Scottish Government takes the view that all incompatible legislation, including primary legislation, should be susceptible to legal challenge.

244. Where legislation is found to violate fundamental requirements, such as compliance with human rights obligations, it should be open to the courts to strike down the legislation in whole or in part. That is of course already well-established as a general principle within the current devolution settlement in Scotland, in relation to legislation which is outwith devolved competence.

245. For example, an Act of the Scottish Parliament which is outwith the competence of the Scottish Parliament is "not law". Similar arrangements are a feature of many modern democratic constitutions.

246. There is in fact a strong sense in which this particular proposal exemplifies the stark contrast between a UK Government approach which is increasingly controlling and intolerant of dissent, and the modern, progressive, human-rights-focused vision being pursued by the Scottish Government.

247. Where the actions of the UK Government reveal a desire to obstruct access to justice and to limit scope for effective legal and political challenge, the Scottish Government wishes instead to promote good governance, to enhance accountability and to ensure compliance with international human rights standards.