UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

The Attorney General and Advocate General referred questions to the Supreme Court in respect of two Bills passed by the Scottish Parliament in March 2021: the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (“the UNCRC Bill”) and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (“the ECLSG Bill”). The UNCRC Bill and the ECLSG Bill are each designed to give effect in Scots law to a treaty to which the UK is a signatory. The references reflect concerns that the manner in which the Bills seek to incorporate the UNCRC and the ECLSG into Scots law breaches the limitations imposed on the legislative competence of the Scottish Parliament by the Scotland Act.

HELD – The Supreme Court unanimously decided that sections 6, 19(2)(a)(ii), 20(10)(a)(ii) and 21(5)(b)(ii) of the UNCRC Bill and sections 4(1A) and 5(1) of the ECLSG Bill would be outside the legislative competence of the Scottish Parliament. This means that the Bills will return to the Scottish Parliament so that these issues can receive further consideration.

Section 28(7) of the Scotland Act preserves the unqualified power of the UK Parliament to make laws for Scotland. If any provision of an Act of the Scottish Parliament purports to modify section 28(7) of the Scotland Act, it will contravene section 29(2)(c) of that Act and will therefore fall outside the competence of the Scottish Parliament.

The Court decided that three provisions of the UNCRC Bill would modify section 28(7) of the Scotland Act.

1. The first is section 19(2)(a)(ii) of the UNCRC Bill, which provides that, “[s]o far as it is possible to do so”, an Act of the UK Parliament “must be read and given effect in a way which is compatible with” the UNCRC. This would require the courts, in certain circumstances, to give statutory provisions a meaning and effect which conflicts with that intended by the UK Parliament. A qualification upon the UK Parliament’s legislative power would be imposed as a result and would impliedly amend section 28(7) of the Scotland Act.

2. The second provision is section 20(10)(a)(ii) of the UNCRC Bill, which would enable the courts to strike down and invalidate provisions of Acts of the UK Parliament which are incompatible with the UNCRC. Allowing existing legislation to remain in force unamended is one of the ways in which the UK Parliament exercises its power to make laws for Scotland. Making the continuation in force of Acts of the UK Parliament conditional on the courts’ decision that they are compliant with the UNCRC would therefore affect the power of the UK Parliament to make laws for Scotland.

3. The third provision is section 21(5)(b)(ii) of the UNCRC Bill, which would confer on the courts the power to declare that an Act of the UK Parliament is incompatible with the UNCRC. Such a declaration would affect 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 the incompatibility, would make it difficult if not impossible for public authorities to continue to implement the relevant Act, and could result in the Scottish Ministers adopting regulations to amend or repeal the relevant Act.

Next, the Court considered section 6 of the UNCRC Bill, which would make it unlawful for any public authority, carrying out any function, to act in a way which is incompatible with the UNCRC. Counsel for the Lord Advocate argued that the provision is permissible because the courts will be able to interpret it so as to impose corrective limitations in individual cases. Such an approach would require the courts to assume a function which goes beyond interpretation as ordinarily understood. It would also result in the circumvention of the system of pre-enactment scrutiny established by sections 31-33 of the Scotland Act, the operation of which is dependent on legislative provisions being drafted with sufficient clarity to enable the requisite assessments to be made by the person in charge of the Bill, the Presiding Officer, and, if a reference is made, the Supreme Court. Accordingly, section 6 of the UNCRC Bill would be outside the legislative competence of the Scottish Parliament.

Finally, the Court decided that two provisions of the ECLSG Bill would modify section 28(7) of the Scotland Act and, for that reason, fall outside the competence of the Scottish Parliament.

1. The first is section 4(1A) of the ECLSG Bill, which provides that Acts of the UK Parliament “must be read and given effect in a way which is compatible with” the ECLSG. This would sometimes require the courts to modify the meaning and effect of Acts of Parliament, producing results which the UK Parliament did not intend.

2. The second provision of the ECLSG Bill is section 5(1), which would confer on the courts the power to declare that an Act of the UK Parliament is incompatible with the ECLSG.

For a non-PDF version, please see: Judgment on BAILII (HTML version)For a PDF version of the judgment, please see: Judgment (PDF)

To watch the hearing, please see below: