Test of legality

The feeling that 2016 just throws up one surprise/shock news story after another invaded the legal world once again with the UK Supreme Court’s ruling in the “named persons” appeal, described in our feature on p 16 of this issue.

While the Court of Session decisions that were reversed were based more on broad principle arguments that also failed before the Supreme Court, the latter body was further favoured with detailed intervener arguments, on the basis of which the Justices were able to conclude that there were several respects in which the information sharing contemplated as part of the scheme went beyond what was compatible with the article 8 right to private and family life.

The judgment displays an exacting scrutiny both of the interaction of the legislation with the Data Protection Act (despite creating a “logical puzzle”, the Scottish Act was held not to stray into legislating on reserved matters), and of whether and how the information sharing provisions fell short of the requirements of European jurisprudence (they failed against the criteria of “in accordance with the law” and proportionality).

While the Scottish Government was quick to affirm that the scheme would proceed, with amendments being prepared to meet the court’s 42-day timetable, it is clear that these will have to be very carefully considered if they are to survive any further challenge. Quite how extensive a revision will be necessary to satisfy the court’s human rights experts, only time will tell.

Taken with the Salvesen ruling on the agricultural holdings legislation, we can see that a legislature that is legally unable to act in breach of Convention rights must be extremely careful not only of the policy intent but also of the detail of the drafting of any enactment, in order not to find itself unable to implement its own law.

It can be said that with few successful challenges since 1999, the Parliament’s lawyers must be doing a good job overall in keeping MSPs within their powers. But it does at the same time highlight the need for bills to be given a more searching examination than MSPs in committee – especially if the committee is dominated by the party or parties in Government – are able to carry out.

If the time were to come when the UK Supreme Court no longer had jurisdiction to rule on the legality of Acts of the Scottish Parliament, in relation to the Human Rights Convention or otherwise, some additional mechanism would be needed whereby its expertise could be, if not replicated, then at least substituted through some constitutionally focused body.