Human Rights Act reform consultation: Scottish Government response

16. Should the proposals for suspended and prospective quashing orders put forward in the Judicial Review and Courts Bill be extended to all proceedings under the Bill of Rights where secondary legislation is found to be incompatible with the Convention rights? Please provide reasons.

248. As has been made clear in the answer to the previous question, it would be constitutionally unacceptable for the UK Government to seek to exempt executive legislation from the possibility of being struck down by the courts.

249. Where secondary legislation is found to be incompatible with ECHR rights, the minister making that legislation has, by definition, acted unlawfully and the courts must retain a discretion as to remedy. The Scottish Government would therefore strongly oppose any proposal which alters the legal and constitutional status of UK secondary legislation.

250. The Scottish Government would be particularly concerned if there were to be an attempt to prevent the judgment of a court from providing a meaningful and effective remedy, for example by suspending its effect unnecessarily.

251. It is of course essential that any individual whose rights have been found by the court to have been breached can obtain justice in the domestic courts. That is a fundamentally important principle which cannot be compromised. The very real fear is that the proposal put forward in the consultation paper is in fact intended to allow the UK Government to continue to evade its responsibilities by persuading, or indeed requiring, the court to suspend the effect of an adverse judgment.

252. Such a conclusion is supported by an examination of clause 1 of the Judicial Review and Courts Bill^[53] (as currently drafted) which requires a court, in certain circumstances, to suspend or limit the retrospective effect of a quashing order. That appears to the Scottish Government to be objectionable as a matter of general principle since it seeks to constrain judicial discretion and interferes to an unacceptable degree in the independent decision-making of the courts. The Scottish Government would strongly oppose any amendment to the HRA which seeks to achieve a similar outcome.

253. More generally, the Scottish Government wishes to emphasise that it considers the courts to have struck a proper balance in dealing with provisions of subordinate legislation that are incompatible with the HRA. As such, the Scottish Government is clear that no change is required to this existing approach.

254. The Scottish Government would robustly oppose any amendment which has the effect of weakening judicial oversight of the executive or of undermining the rule of law.