Challenges to devolved legislation
Produced in partnership with SinclairsLaw
Challenges to devolved legislation

The following Public Law guidance note Produced in partnership with SinclairsLaw provides comprehensive and up to date legal information covering:

  • Challenges to devolved legislation
  • Sovereignty vs Statute—the limits of devolved law making
  • The political background to legal challenges
  • When can a Bill be challenged?
  • On what grounds can a Bill or Act of a devolved legislature be challenged?
  • Can devolved legislation be challenged on the common law grounds of irrationality, unreasonableness or arbitrariness?
  • What is legislative competence?
  • The approach of the courts

Since devolution began, there have been number of challenges to devolved legislation. The initial challenges were brought by individuals seeking to uphold their rights under the European Convention on Human Rights. However, since 2008 there has been a distinct shift toward challenging devolved statutes on the grounds that they are beyond the legislative competence of the devolved legislature itself.

This Practice Note aims to provide some foundational guidance on how and why these challenges occur and how the court has approached these challenges so far.

Sovereignty vs Statute—the limits of devolved law making

As the sovereign legislature of the UK, the UK Parliament has a complete and unfettered discretion to pass legislation. See Practice Note: Separation of powers: legislative, executive and judiciary.

Where an Act of Parliament has been challenged in the court, the judiciary will do their utmost to interpret legislation in such a way as to avoid unforeseen or undesirable outcomes without directly challenging the validity of the Act itself. See Practice Note: Methods of statutory interpretation used to resolve ambiguities in legislation.

Since 2 October 2000, Section 3 of the Human Rights Act 1998 requires the courts to use this interpretive discretion widely in order to read and apply an Act of Parliament in a manner consistent with the Articles of the European Convention on Human Rights without affecting the