LAST week the Supreme Court reminded the Scottish Parliament of the limits of its powers to legislate.
The case before the Supreme Court on appeal from the Inner House of the Court of Session concerned whether section 72 of the Agricultural Holdings (Scotland) Act 2003 lay within legislative competence. In particular, the question was whether the section was incompatible with protection of property in terms of Article 1 of Protocol 1 of the European Convention on Human Rights.
In trenchant terms Lord Hope, giving judgment for the Supreme Court, emphatically stated the Scottish Parliament had trespassed beyond its powers in enacting the provision. The provision, which imposed a retrospective and unreasonable burden on certain landlords, elicited Lord Hope’s strictures that “the difference in treatment has no logical justification. It is unfair and disproportionate.”
He echoed Lord Gill, sitting as Lord Justice Clerk in the Inner House, who observed “the conclusion is irresistible in my view that the provisions of section 72 were essentially punitive”.
It is a truth that legislative drafting is no easy task. Parliamentary drafters undergo lengthy training and are required to reduce ministerial enthusiasms into language that fits the UK’s interpretational standards and is comprehensible to the legal profession.
As with UK legislation, Scottish legislation has certain hurdles to overcome before enactment to avoid incompatibility with the European convention.
The minister in charge of the legislation is obliged to make a statement on legal advice that the test of compatibility is met.
Additionally and separately, the Presiding Officer is responsible for applying an independent test of compatibility before any legislative proposal can go before the Scottish Parliament.
The final protection against legislative excess by the Scottish Parliament is that provisions incompatible with the convention (and also EU law) will be struck down by the court as “not law” or, to put it another way, beyond legislative competence.
No system is flawless, but one may still ask how it was that Mr Salvesen, a Midlothian farm landlord (and others for all we know) had guaranteed rights in property subverted over a ten-year period by a law of the Scottish Parliament? The protections of the system failed.
What is singularly unfortunate about this case is the sense that the rights were infringed primarily because Mr Salvesen was a landlord. Lord Hope detected a possible “marked bias against landlords” leading him to state what one might have thought was unnecessary in today’s Scotland: “As a minority group landlords, however unpopular, are as much entitled to the protection of the convention rights as anyone else.”
Neither is it encouraging that while the provision was enacted in 2003, the incompatibility was still being defended in 2013 before the Supreme Court.
The Supreme Court recognised the difficulty it was placed in where a long period had elapsed since the legislation came into operation. Competing rights and interests in such circumstances cannot easily be disentangled, and the Supreme Court itself must avoid making incompatible decisions.
In the result, the Supreme Court has had to suspend the effect of its finding of legislative incompetence in the anticipation that Scottish ministers will come up with proposals to remedy the situation within 12 months.
It is fair to ask whether the three-test system of protection of convention rights in the Scottish Parliament is effective.
The design of the system would seem reasonably sound. The question must therefore be one of the system’s operation.
Those responsible for the system’s operation need to revisit the standard of supervision they apply. Enduring incompatibility – or to put it more starkly, enduring unlawfulness – brought about by the legislative process does not inspire confidence.
• Lord Davidson QC is a former solicitor general and former advocate general for Scotland.