The Scotland Act 1998 and the Supreme Court - what happened?

The UK Supreme Court has recently decided two Scottish cases that have attracted considerable and contentious comment from academics and practitioners alike, along with a statement to the UK Parliament by the Secretary of State for Scotland, Alister Jack.

The cases, which were decided together, raised the issue concerning certain provisions of two Scottish Parliament bills passed in March 2021: the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. The Court found these bills outwith the legislative competence of the Scottish Parliament.

Section 33(1) of the Scotland Act 1998 permits the Attorney General and the Advocate General for Scotland (the "UK Law Officers") to refer to the UK Supreme Court the question of whether a Bill that has been passed by the Scottish Parliament, or any provision of such a Bill, would be within the legislative competence of the Scottish Parliament.

The UK Law Officers made references to the Supreme Court about specific sections in each bill.  Sections 6, 19(2)(a)(ii), 20(10)(a)(ii) and 21 (5)(b)(ii) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (the UNCRC Bill) and sections 4(1A) and 5(1) of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (ECLSG Bill).

The UNCRC Bill was passed on 16 March 2021 and the ECLSG Bill was passed on 23 March 2021. Both Bills incorporate into Scots law international treaties to which the UK is a signatory.

The UNCRC was ratified by the UK in 1991, but it has not been directly incorporated into domestic law across the UK. The UNCRC Bill proposed to incorporate the UNCRC as a schedule to the Bill, with various amendments to reflect the Scottish Parliament’s competence.

The ECLSG was ratified by the UK in 1998 and the ECLSG Bill will incorporate Articles 2-11 Articles which are listed in the schedule to the Bill.

The Law Officers took no issue in either of the references with the legislative competence of the Scottish Parliament to incorporate versions of these treaties into Scots Law.

Rather, the legislative competence questions concerned the following:

A. The Bills would provide the Scottish courts with extensive powers to interpret and scrutinise primary legislation passed by the UK Parliament. The UK Law Officers considered that these provisions amended section 28(7) of the Scotland Act 1998 and are outwith the legislative competence of the Scottish Parliament.

B. Certain provisions of both Bills require "reading down" to come within the legislative competence of the Scottish Parliament. The Law Officers wanted an authoritative statement on the application of s 101(2) of the Scotland Act 1998 to the referred provisions of the Bills. Section 101(2) requires that a provision that could be read in such a way as to be outside the competence of the Scottish Parliament must be read as narrowly as is required for it to be within legislative competence, if such a reading is possible.

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 and 5 of the ECLSG bill were outside the legislative competence of the Scottish Parliament. This means that the bills return to the Scottish Parliament for further consideration.

Looking in more detail, the UNCRC sections that were found to be outside the Parliament’s legislative competence:

A.    Section 6 (Definition of public authority)
The Supreme Court considered section 6 was drafted in such a way that it could apply to UK authorities acting in reserved areas. Therefore, section 6 was beyond the powers of the Scottish Parliament.

B.     Section 19 (Interpretation)
The Court concluded this section would give Scottish courts the power to interpret UK laws in ways the UK Parliament had not intended. Therefore, this would affect the powers of the UK Parliament to make laws for Scotland and was outside the Parliament’s competence.

C.    Section 20 (Strike down powers)
This section gave the Scottish courts the power to strike down acts of the UK Parliament which were considered incompatible with the UNCRC legislation. The Court considered this would affect the powers of the UK Parliament to make laws for Scotland and was outside the competence of the Scottish Parliament.

D.     Section 21 Incompatibility declarators
This section allows Scottish courts to make a declaration that an Act of the UK Parliament does not comply with UNCRC. The Court took the view that his would affect the powers of the UK Parliament to make laws for Scotland.