Supreme Court holds public authorities are bound to disapply secondary legislation under the HRA

13/11/19

The Supreme Court has today handed down judgment in RR v SSWP, holding that public authorities and Tribunals can, and indeed must, disapply secondary legislation that is incompatible with Convention rights.

The appellant, supported by interveners including Liberty, the Public Law Project and the Child Poverty Action Group, had sought to overturn the controversial decision of the majority of the Court of Appeal in SSWP v Carmichael [2018] EWCA Civ 548.  The Court of Appeal in that judgment held that there was no power to disapply secondary legislation, requiring individuals to seek a remedy only by way of a damages award under s8 of the Human Rights Act (“HRA”) instead. 

The Supreme Court agreed with the appellant and intervener’s arguments on that “important constitutional question”, and overturned the Court of Appeal.  In a judgment by Lady Hale with which all the members of the Supreme Court agreed, the Court reiterated that all public authorities are, pursuant to s6 of the HRA, bound to disapply such legislation.  It concluded that “[t]here is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA”.

It is believed that this is the first “leapfrog” case from the Upper Tribunal to reach the Supreme Court. 

The judgment can be found here.