Scottish Bills Exceeded Legislative Competence
The judgment of the Supreme Court yesterday on a reference under section 33 of the Scotland Act 1998 concerned two bills passed by the Scottish Parliament earlier this year: The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (UNCRC) and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (ECLSG): 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
The Bills were each designed to give effect in Scots law to treaties to which the United Kingdom was a signatory.
The Court recognised that it was a decision for the Scottish Parliament whether to incorporate the UNCRC and ECLSG into Scots law and neither reference took issue with that.
Interestingly, and entirely uncoincidentally perhaps, the court was composed of Justices with links to each part the United Kingdom: Lord Reed (President), Lord Hodge (Deputy President), Lord Lloyd-Jones, Lord Sales, Lord Stephens.
Unanimously, the court decided that certain sections of the two Bills were outside the legislative competence of the Scottish Parliament.
The upshot was that the Bills would return to the Scottish Parliament for the issues to be considered further.
Section 19(2)(a)(ii) of the UNCRC Bill required the courts in certain circumstances to give statutory provisions a meaning and effect which conflicted with that intended by the UK Parliament, thereby imposing a qualification upon the UK Parliament’s legislative power.
Section 20(10)(a)(ii) made the continuation in force of Acts of the UK Parliament conditional on the courts’ decision that they were compliant with the UNCRC and therefore affected the power of the UK Parliament to make laws for Scotland.
Section 21(5)(b)(ii) affected the power of the UK Parliament to legislate for Scotland insofar as it would impose pressure on the UK Parliament to amend or repeal the relevant Act to remove incompatibility.
It was not disputed that section 6 of the UNCRC was on its face outside the legislative competence of the Scottish Parliament. The argument that the provision was nonetheless permissible because the courts would be able to interpret it so as to impose corrective limitations in individual cases would require the courts to assume a function which went beyond interpretation as ordinarily understood.
It would also result in a circumvention of the system of pre-enactment scrutiny established by sections 31-33 of the Scotland Act.
Section 4(1A) of the ECLSG Bill providing that Acts of the UK Parliament “must be read and given effect in a way which is compatible with” the ECLSG would sometimes require the courts to modify the meaning and effects of Acts of Parliament producing results which the UK Parliament did not intend.
Section 5(1) of the ECLSG Bill gave the courts power to declare that an Act of the UK Parliament was incompatible with the ECLSG which, again, would affect the power of the UK Parliament to legislate for Scotland.
It therefore followed that insofar as these clauses would purport to modify section 28(7) of the Scotland Act, they would fall outside the competence of the Scottish Parliament.