REFERENCE by the Attorney General and the Advocate General for Scotland - United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill; REFERENCE by the Attorney General and the Advocate General for Scotland - European Charter of Local Self Government (Incorporation) (Scotland) Bill
[2021] UKSC 42
Supreme Court
Facts:
The Scotland Act 1998 invests the Scottish Parliament with legislative authority but does not prevent the UK Parliament to make laws for Scotland.
The Scottish Parliament passed UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill to give effect to 2 treaties that the UK is a signatory of.
Legal Issues:
No issue in the Scottish Parliament regarding the incorporation of the treaties.
Certain provisions are contested as they replicate key features of the Human Rights Act 1998, with additional powers to strike down legislation that is incompatible with the treaties.
Judgement (Reed PSC, Hodge DPSC, Lloyd-Jones JSC, Sales JSC and Stephens JSC):
Interpretive powers, ‘strike down’ powers and ‘incompatibility declarators’ are incompatible with the Scotland Act as they would modify s28(7). Therefore, this matter is outside of the legislative competence of the Scottish Parliament.
The provision requiring public authorities (not explicitly excluding UK ministers) to act compatible with the requirements is also outside of the legislative competence of the Scottish Parliament.
Reasoning:
[7]: ‘The Scotland Act Must be interpreted in the same way as any other statute’.
‘As the judgment in the Continuity Bill case made clear, the Scottish Parliament cannot make the effects of Acts of Parliament conditional on decisions taken by other institutions’
[28]: Interpretative power: 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’ which is ‘inconsistent with section 28(7) of the Scotland Act’
Incompatibility declarators: ‘impose pressure on Parliament to avoid the opprobrium’ which a finding of incompatibility would entail.
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’.[1]
[1] Elliott & Kilford, ‘Devolution in the Supreme Court: Legislative Supremacy, Parliament’s ‘Unqualified’ Power, and ‘Modifying’ the Scotland Act’ (15 October 2021) UK Constitutional Law Association Blog
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