In an unanimous judgment handed down on 6 October 2021, the Supreme Court has held that six provisions of two Bills passed by the Scottish Parliament would be outside devolved competence: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill; European Charter of Local Self-Government (Incorporation) (Scotland) Bill  UKSC 42. Both Bills were referred to the Court by HM Attorney General and HM Advocate General for Scotland (“the UK Law Officers”) under section 33 of the Scotland Act 1998. The Supreme Court agreed with the UK Law Officers that the referred provisions would be outside competence for essentially the reasons given by the UK Law Officers.
Both Bills incorporated international treaties into Scots law, and contained enforcement provisions which applied to primary legislation of the UK Parliament (where that legislation falls within devolved competence). The UNCRC Bill purported to provide to the Scottish courts the power to read down provisions of primary legislation, to strike them down altogether (where passed prior to the Bill coming into force), and to make declarations of incompatibility (where passed after the Bill came into force), where that primary legislation was incompatible with an incorporated UNCRC right. The ECLSG Bill contained similar interpretative and incompatibility declaration powers.
The Supreme Court held that all of these powers so far as they applied to UK Parliament legislation were outside the competence of the Scottish Parliament to enact because they had the effect of modifying the power of the UK Parliament to make law for Scotland, as guaranteed by section 28(7) of the Scotland Act.
In addition, the Court held that section 6 of the UNCRC Bill was outside the competence of the Scottish Parliament and that it could not be read down using the interpretation provision in section 101(2) of the Act. Section 6 enacted a general duty on public authorities to act compatibly with the scheduled UNCRC rights. It did not make express provision for how the competence limitations applicable to the Bill were to limit that general duty, and it was the Scottish Government’s position that such a general provision was permissible because the courts would clarify the bodies and contexts in which the duty did not apply using section 101(2) of the Scotland Act. The Supreme Court gave important guidance on the limits of section 101(2) and held that the approach adopted in section 6 of the Bill could not be ‘saved’ by section 101(2), as that would frustrate the need to assess the competence of the Scottish Parliament at the outset and would constitute law which was unacceptably uncertain.
The judgment is an important contribution to the jurisprudence on the devolution settlement. The judgment can be read here.
Christopher Knight acted for the UK Law Officers on the references.