Essay: UNCRC Ref Case [63]

Question:

Analyse and Critically Assess the Decision of the UK Supreme Court in the UNRC Reference [2021] UKSC 42 Case.

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Answer:

In holding that the six provisions in the Scottish Parliament's recent enacting of both the United Nations Conventions of the United Nations Conventions of the Rights of the Child and the European Charter of Local Self-government bills were not within their legal power to enact, the UK Supreme Court certainly reinforced the constitution's fundamental principle of Parliamentary Sovereignty. The explicit application of the judgement in the previous Continuity Bill case achieved this through showing that the Scotland Act 1998 still proves that the Westminster Parliament ultimately still holds the power to legislate for Scotland despite the process of devolution that the Act also instigates.

The judgement proves that devolution is "the delegation of central government powers without the relinquishment of sovereignty[1]". The Westminster and Scottish Parliaments "already cooperate well together" through the convention where the UK Parliament does not use its power to legislate for Scotland on devolved and reserved matters without the "agreement of the Scottish Parliament[2]". This is seen in the case of Imperial Tobacco Ltd v Lord Advocate (2012) where the UK Supreme court unanimously held that the Scottish Parliament could competently legislate on matters such as the regulation of the sale of Tobacco products. Despite this, the UK Parliament has the ultimate power to make and amend laws. In ruling that a "provision which required the courts to modify the meaning and effect of legislation enacted by Parliament would plainly impose a qualification upon its legislative power" as it is "inconsistent with section 28(7) of the Scotland Act[3]", the UK Supreme Court decision upholds a key principle of Dicey's "Rule of Law": that the law is supreme and Parliamentary sovereignty is at the centre of the British constitution. The Rule of Law is further upheld through the provision in the bill that legislation is to be interpreted “in a way which is compatible” with the treaty, which reinforces continuity and the compatibility of the two Parliaments, yet also highlights the scope for the lack of accessibility and clarity in the English common law. Admittedly, the purpose of the two bills was to take the first step in "[strengthening] and [developing] the legal framework for human rights in Scotland.[4]" This is seen in section 28(7) of the Scotland Act as whilst it was introduced to allow the Scottish devolution referendum in 1997, it "does not affect the power of the Parliament of the UK to make laws for Scotland", making it "clear that Westminster retains absolute Parliamentary sovereignty over[5]" the Scottish Parliament. Although the process of devolution may seemingly reduce the absolute power of the UK Parliament, this case establishes that ultimately the Westminster Parliament gives its devolved nations the power to legislate, but crucially can take it away too. It mirrors the fundamentals of UK constitutionalism, which is to "[acknowledge] the necessary power of government while placing conditions and limits upon its exercise[6]", but on a domestic level by providing a governmental check on the lower Scottish courts to concentrate public power in a single institution.

The UNCRC reference case does not only reinforce the notion of Parliamentary sovereignty, but it extends it too. The case "confirms that devolved legislatures are constrained not merely by the sovereignty of the UK Parliament but by the more far-reaching, and imprecise notion that it retains 'unqualified' power[7]". The reasoning of the judges leant on the distinction between the Westminster Parliament's 'unqualified' power to make laws and Parliamentary sovereignty. This suggests that the UK Parliament's supreme power to make laws is a "more fragile concept than sovereignty" which "essentially acts as a limitation on the Scottish Parliament's powers[8]". Furthermore, if we take the power of parliamentary supremacy further, as critic Kilford argues, it is possible that "these bills might not offend parliamentary sovereignty" as it is "sufficiently flexible that they could not offend it[9]". As well as the notion of Parliamentary sovereignty, this case highlights the fact that devolution is "also limited by the broader principle that the Scottish Parliament cannot do anything that would be inconsistent with Westminster's 'unqualified' power to make laws for Scotland[10]", signifying the extent of the limitations of devolution. This extension of Parliamentary supremacy, although legitimate, could also be seen as far-reaching and unnecessary. In this sense, the Westminster Parliament should give the Scottish courts more leeway in their decision-making powers so that the Scotland Act is interpreted more widely, rather than “in the same way as any other statute”.

To conclude, the UK Supreme Court judgement in the UNCRC cases ultimately upholds the UK constitutions’ fundamental principle of the Diceyan Rule of Law and particularly Parliamentary sovereignty, while extending the Westminster parliaments’ power to limit that of the Scottish Parliament and thus, perhaps to an unnecessary extent, limit the aims of the process of devolution.

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Feedback:

Grade: 63

Feedback:

This is a good effort and one where you have identified the implications well. Where this could have improved is by looking more specifically at the contested provisions of the Scottish bill e.g. section 19(2)(a)(ii), S.20, s.21(15)(b)(ii) which you would have noticed from a close reading of the case. That said, this is a good effort on a difficult question. Well done.

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References: [1] Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century (2009) [2] Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century (2009) [3] Attorney General's Reference, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, Re Attorney General's Reference, European Charter of Local Self-Government (Incorporated) (Scotland) Bill (2021) UKSC 42 [29] [4] Joanna Clark, “Case Comment”, (UKSC Blog, 12 November 2021), https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferenceguide.pdf , accessed 3rd March 2022 [5] Joanna Clark, “Case Comment”, (UKSC Blog, 12 November 2021), https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferenceguide.pdf , accessed 3rd March 2022 [6] Le Sueur, A. P., Sunkin, Maurice, and Murkens, Jo Eric. Public Law : Text, Cases, and Materials. 4th Edn. ed. 2019. Law Trove. Web. [7] Mark Elliott and Nicholas Kilford, “Devolution in the Supreme Court: Legislative Supremacy, Parliament’s ‘Unqualified’ Power, and ‘Modifying’ the Scotland Act”, (UK Constitutional Law Association Blog , 15 October 2021), https://ukconstitutionallaw.org/2021/10/15/mark-elliott-and-nicholas-kilford-devolution-in-the-supreme-court-legislative-supremacy-parliaments-unqualified-power-and-modifying-the-scotland-act/ , date accessed 3rd March 2022 [8] Nicholas Kilford, “The UNCRC Reference: What did we Learn?”, (Constitutional Law Matters, 2nd November 2021), < https://constitutionallawmatters.org/2021/11/the-uncrc-reference-what-did-we-learn/> , date accessed 3rd March 2022 [9] Nicholas Kilford, “The UNCRC Reference: What did we Learn?”, (Constitutional Law Matters, 2nd November 2021), < https://constitutionallawmatters.org/2021/11/the-uncrc-reference-what-did-we-learn/> , date accessed 3rd March 2022 [10] Nicholas Kilford, “The UNCRC Reference: What did we Learn?”, (Constitutional Law Matters, 2nd November 2021), < https://constitutionallawmatters.org/2021/11/the-uncrc-reference-what-did-we-learn/> , date accessed 3rd March 2022