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As my colleague Charlotte outlined in a previous blog, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (UNCRC Bill), along with the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (ECLSG Bill), were introduced to the Scottish Parliament in 2020. They incorporate two international treaties into Scots Law. Both bills were subject to a legal challenge in the Supreme Court, which ruled they contained elements which lay outside the competence of the Scottish Parliament.

 

Both bills were passed unanimously by MSPs in March but were almost immediately referred to the Supreme Court by the Attorney General and the Advocate General for Scotland. UK law officers claimed the legislation would place obligations on UK Parliament legislation and was therefore beyond the scope of the Scottish Parliament. In their submission to the court, they argued the laws would “bestow upon the Scottish courts extensive powers to interpret and scrutinise primary legislation passed by the sovereign UK Parliament”.

 

This was the Scottish Government’s preferred approach: to give courts the ability to strike down legislation incompatible with the bills, including legislation pre-dating the commencement of the bill, and legislation pre-dating devolution. That this approach would be subject to legal challenge should have been no surprise to the Scottish Government. At all stages of proceedings in the Scottish Parliament, MSPs asked Scottish ministers if they had considered the fact parts of the law may not be compatible with the current devolution settlement.

 

In response to a ministerial statement in November 2019 (before the UNCRC Bill had been introduced), John Finnie asked what consideration had been made on securing an order under section 30 of the Scotland Act. During the stage 1 debate on the UNCRC Bill Conservative speakers also asked what assessment had been made of how the legislation would interact with reserved matters. In stage 3 of proceedings, Jamie Greene highlighted the Law Society of Scotland shared concerns about the interplay between provisions of the bill and UK legislation.

 

On Wednesday 6 October, the UK Supreme Court ruled both bills featured elements outside the competence of the Scottish Parliament. The justices hearing the appeal claimed the legislation would, as UK law officers claimed, impact the functions of the UK Parliament and open the possibility of legal challenge via Scottish courts.

 

Holyrood can repeal or amend laws made by Westminster in devolved areas before devolution (the Education (Scotland) Act 1980 for example), but laws cannot be subject to challenge in the Scottish courts, which the UNCRC and ECLSG bills seek to allow. Holyrood could amend the Education (Scotland) Act 1980 to ensure it adheres to the conventions of the UNCRC, but it could not be struck down by Scottish courts.

 

For the bills to receive royal assent the Scottish Government must make changes to the drafting of both bills to bring disputed aspects into competence. Andy Wightman, who introduced the ECLSG Bill, suggests in order to prevent future legal challenge of this kind the Scottish Government could incorporate all laws made for Scotland by the UK Government in devolved areas into Scots Law, thus repealing legislation such as the Education (Scotland) Act 1980. Andrew Tickell notes the sheer amount of Scots Law made by Westminster which will remain beyond the scope of the law because of the ruling. Some legislation, made by Westminster and amended by Holyrood both will and won’t be subject to the UNCRC Bill. It is this, he argues, that the Scottish Government was trying to avoid.

 

Both the SNP and the Conservatives have been accused of “constitutional wrangling” over the issue. If the Scottish Government had been warned of the incompatibility of parts of the bills with the Scotland Act, they should have made changes earlier in the legislative process, and if the UK Government agreed with the fundamental principles of the legislation, it could have resolved its issues with it in a less public way. The case further highlights the increasing justiciability of the UK constitution, following court rulings on the Continuity Bills passed by the Scottish Parliament and the Miller/Cherry case about the prorogation of Parliament in 2019.

 

It is likely if the Scottish Government holds a second referendum on Scottish independence without a section 30 order from the UK Government, it will also be subject to a legal challenge in the Supreme Court. Although the constitutional settlement in the UK is full of grey areas one principle remains omnipresent – the UK Parliament is supreme and sovereign. It is this principle which the Supreme Court ruling emphasises.

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