Introduction

In the landmark case titled REFERENCES (Bills) by the Attorney General and the Advocate General for Scotland - United Nations Convention on the Rights of the Child and European Charter of Local Self-Government (Incorporation) (Scotland) ([2021] UKSC 42), the United Kingdom Supreme Court addressed critical questions regarding the legislative competence of the Scottish Parliament. The case arose after the Scottish Parliament enacted two significant Bills: the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (UNCRC Bill) and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (ECLSG Bill). Her Majesty’s Attorney General and Her Majesty’s Advocate General for Scotland referred specific sections of these Bills to the Supreme Court to determine whether they exceeded the legislative authority granted to the Scottish Parliament under the Scotland Act 1998.

The central issues revolved around whether particular provisions of these Bills modified section 28(7) of the Scotland Act, which preserves the unqualified law-making power of the UK Parliament over Scotland, thereby breaching section 29(2)(c) of the Act. The Supreme Court’s decision has profound implications for the scope of legislative powers devolved to the Scottish Parliament, especially in incorporating international treaties into domestic law.

Summary of the Judgment

The United Kingdom Supreme Court unanimously determined that several key provisions of both the UNCRC Bill and the ECLSG Bill were outside the legislative competence of the Scottish Parliament. Specifically, the Court found that:

• Section 19(2)(a)(ii) of the UNCRC Bill: Modified section 28(7) of the Scotland Act, thereby exceeding legislative competence.
• Section 20(10)(a)(ii) of the UNCRC Bill: Imposed conditions that effectively altered the unqualified law-making power of the UK Parliament.
• Section 21(5)(b)(ii) of the UNCRC Bill: Similarly affected the foundational legislative authority of the UK Parliament.
• Section 6 of the UNCRC Bill: Related to reserved matters and modified section 28(7), further exceeding legislative boundaries.
• Section 4(1A) of the ECLSG Bill: Altered section 28(7) of the Scotland Act, placing it outside competence.
• Section 5(1) of the ECLSG Bill: Also modified section 28(7) of the Scotland Act, contravening legislative limits.

Consequently, the Supreme Court upheld that these sections could not be lawfully enacted by the Scottish Parliament as they infringed upon the reserved powers and legislative supremacy of the UK Parliament.

Analysis

Precedents Cited

The judgment extensively relied on established legal precedents to assess the legislative competence of the Scottish Parliament:

• Continuity Bill Case (In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64): Set foundational principles regarding the interpretation of the Scotland Act, emphasizing the importance of not altering the unqualified legislative powers of the UK Parliament.
• Ghaidan v Godin-Mendoza [2004] UKHL 30: Explored the interpretative obligations imposed by the Human Rights Act 1998, demonstrating the courts' ability to modify legislative intent to ensure compatibility with human rights conventions.
• AXA Insurance Cases (AXA General Insurance Ltd v HM Advocate [2011] UKSC 46; Henderson v HM Advocate 2011 JC 96): Addressed the limitations of devolved legislatures in modifying reserved matters, reinforcing the supremacy of the UK Parliament.
• Named Persons Case (Christian Institute v Lord Advocate [2016] UKSC 51): Highlighted the necessity for clear and accessible legal provisions, critiquing legislation that did not account for existing UK laws.

Legal Reasoning

The Court’s legal reasoning centered on the following key points:

• Modification of Section 28(7): Any provision that effectively alters or conditions the unqualified legislative power of the UK Parliament over Scotland is deemed outside the Scottish Parliament's competence.
• Section 101(2) Interpretation: The Scottish Parliament cannot rely on interpretative provisions to subsume clearly outside-competence legislation within its legislative authority. The Court emphasized that such interpretations cannot override explicit legislative boundaries.
• Reserved Matters: Sections of the Bills that pertain to reserved matters (e.g., defense, foreign affairs) inherently exceed the legislative competencies of the Scottish Parliament as defined in Schedule 5 of the Scotland Act.
• Rule of Law and Legal Certainty: The Court underscored the importance of clear, accessible, and predictable laws, critiquing provisions that necessitated judicial modifications to align with legislative competence.

Impact

The Supreme Court's decision has significant ramifications:

• Limitation of Devolved Powers: Reinforces the boundaries of legislative competence for the Scottish Parliament, ensuring that it cannot encroach upon reserved matters or the overarching legislative authority of the UK Parliament.
• Incorporation of International Treaties: Sets a precedent that while the Scottish Parliament can regard international treaties like the UNCRC and ECLSG as important, their incorporation must strictly adhere to the legislative competence outlined in the Scotland Act.
• Judicial Oversight: Highlights the role of the judiciary in maintaining the constitutional balance between devolved administrations and the central government, ensuring adherence to statutory limitations.
• Future Legislation: Legislators within the Scottish Parliament must exercise caution to ensure that future Bills do not attempt to modify or condition the legislative supremacy of the UK Parliament.

Complex Concepts Simplified

Legislative Competence

Legislative competence refers to the authority granted to a legislative body, in this case, the Scottish Parliament, to enact laws within specific domains as delineated by the Scotland Act 1998. Any attempt to legislate beyond these defined areas is deemed ultra vires (beyond legal power).

Section 28(7) of the Scotland Act

This section preserves the power of the UK Parliament to make laws for Scotland, defining the boundaries within which the Scottish Parliament can operate. Any legislation that modifies or conditions this power is outside the Scottish Parliament’s legislative competence.

Section 29(2)(c) of the Scotland Act

This provision outlines specific limitations on the Scottish Parliament’s legislative powers, including prohibitions against modifying reserved matters or overarching legislative powers such as those in section 28(7).

Reserved Matters

Reserved matters are areas of law that remain under the exclusive jurisdiction of the UK Parliament, including defense, foreign affairs, fiscal and economic policy, and social security. The Scottish Parliament cannot legislate on these matters.

Conclusion

The Supreme Court's judgment in this case serves as a definitive affirmation of the limits of the Scottish Parliament's legislative competence. By ruling that specific provisions of both the UNCRC and ECLSG Bills exceeded these limits, the Court reinforced the constitutional boundaries established by the Scotland Act 1998. This decision ensures that the legislative supremacy of the UK Parliament remains intact in critical areas, while also delineating the appropriate scope of devolved legislative powers.

For the Scottish Parliament, this means that any future attempts to incorporate international treaties or similar instruments must be meticulously crafted to stay within the legislative confines outlined by the Scotland Act. Additionally, the judgment underscores the pivotal role of the judiciary in preserving the constitutional balance between the devolved administrations and the central government.

Overall, this landmark decision not only clarifies the extent of devolved legislative powers but also safeguards the principle of legal certainty and the rule of law within the United Kingdom’s constitutional framework.