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)

Factual and Procedural Background

On 16 March 2021 the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (“UNCRC Bill”), and on 23 March 2021 it passed the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (“ECLSG Bill”). Both Bills seek to give domestic effect in Scotland to international treaties already ratified by the United Kingdom.

Acting under section 33(1) of the Scotland Act 1998, the Attorney General and the Advocate General for Scotland (collectively, the “Referring Law Officers”) asked the Supreme Court to determine whether specified provisions of each Bill would be within the legislative competence of the Scottish Parliament. The Lord Advocate (the Scottish Government’s chief law officer) and the Counsel General for Wales were represented and made submissions. The judgment, delivered by Judge Reed and agreed by four other Justices, answers six referred questions—four concerning the UNCRC Bill and two concerning the ECLSG Bill.

Legal Issues Presented

1. Whether specific interpretative and remedial provisions in the UNCRC Bill (sections 19(2)(a)(ii), 20(10)(a)(ii), 21(5)(b)(ii) and 6) are outside devolved competence because they would “modify” section 28(7) of the Scotland Act 1998 or relate to reserved matters.
2. Whether analogous provisions in the ECLSG Bill (sections 4(1A) and 5(1)) are likewise outwith competence for the same reason.
3. Whether section 101(2) of the Scotland Act (the “read-down” provision) can rescue any impugned clauses by permitting a narrower, competence-compliant interpretation.

Arguments of the Parties

Arguments of the Referring Law Officers

• The impugned sections would make the effect or interpretation of Acts of the UK Parliament subject to conditions imposed by the Scottish Parliament or Scottish courts, thereby “modifying” section 28(7) of the Scotland Act, which preserves Westminster’s unqualified power to legislate for Scotland.
• Sections granting courts power to strike down or declare Acts of Parliament incompatible impermissibly trench upon reserved matters and parliamentary sovereignty.
• Section 101(2) cannot be used to rewrite provisions that are, on their face, beyond devolved competence.

Arguments of the Scottish Law Officer

• The interpretative provisions merely mirror section 3 of the Human Rights Act 1998 and do not truly limit Westminster’s power because Parliament may always legislate to disapply them.
• Where strike-down powers apply only to pre-commencement UK statutes, they do not fetter Parliament’s future legislative authority.
• Any competence difficulties can be cured by reading the provisions narrowly under section 101(2) of the Scotland Act.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court applied a two-stage analysis:

1. Does the provision “modify” section 28(7)?
   a. Following the Continuity Bill decision, a protected enactment is modified not only by express amendment but whenever its practical effect is limited or conditioned.
   b. Requiring courts to reinterpret Acts of Parliament (section 19 UNCRC; section 4 ECLSG) or to issue strike-down or incompatibility declarators (sections 20 and 21 UNCRC; section 5 ECLSG) effectively renders Westminster legislation contingent upon devolved institutions, thus qualifying Parliament’s sovereignty.
2. Can section 101(2) save the clauses?
   a. Section 101(2) is an interpretative tool, aimed at narrow linguistic adjustments, not wholesale rewriting.
   b. Using it to transform provisions “deliberately framed in maximalist terms,” as with section 6 UNCRC, would gut the pre-enactment safeguards (ministerial statements, Presiding Officer scrutiny, section 33 references) built into the devolution scheme.
   c. The Court contrasted section 101 with the broader Human Rights Act 1998, emphasising the word “narrowly” and the constitutional necessity of certainty.

Because each impugned clause either imposed conditions on Westminster’s legislative power or related to reserved matters, and because none could be read-down without effectively redrafting them, every questioned provision lay beyond the Scottish Parliament’s competence.

Holding and Implications

HOLDING: All six referred provisions are outside the legislative competence of the Scottish Parliament and, if enacted without amendment, would be “not law” under section 29(1) of the Scotland Act 1998.

Implications: The judgment re-affirms the protective reach of section 28(7) and clarifies that devolved legislatures cannot, even indirectly, compel UK legislation to be construed, suspended or invalidated by devolved courts or ministers. It underscores the limited role of section 101(2) as an interpretative, not remedial, device. While the decision leaves incorporation of international treaties to devolved choice, it insists that any such legislation must respect the reserved powers of the UK Parliament and the constitutional principle of parliamentary sovereignty. No new precedent is set; rather, existing doctrine from the Continuity Bill case is applied and reinforced.