The Scottish Parliament passed two Bills to give domestic effect to international commitments concerning children’s rights and local self-government. Before Royal Assent, the UK law officers referred particular clauses to the Supreme Court. The issue was whether the Scottish Parliament could give those clauses their proposed effect on UK legislation.
The references
On 16 March 2021 the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. On 23 March 2021 it passed the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. The United Kingdom had ratified the Convention in 1991 and the Charter in 1998. Each was already reflected in parts of domestic law, but neither had been incorporated as a whole. Each Bill would have given effect to a scheduled version of the instrument.
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Before Royal Assent, the Attorney General and the Advocate General for Scotland referred specified provisions to the Supreme Court under section 33(1) of the Scotland Act 1998. They did not challenge the decision to incorporate the treaties. Their concern was that some provisions would affect matters outside devolved competence. The Counsel General for Wales took part because the answers might also matter for the other devolved legislatures. Lord Reed gave the judgment, with which Lord Hodge, Lord Lloyd-Jones, Lord Sales and Lord Stephens agreed.
The limit that mattered
The Scottish Parliament may make laws for Scotland, but it does not have the sovereignty of the Crown in Parliament. Section 28(7) of the Scotland Act says that this power does not affect the power of the United Kingdom Parliament to make laws for Scotland. Under section 29, a provision is outside competence if, among other things, it relates to reserved matters or breaches Schedule 4. Paragraph 4(1) of Schedule 4 prevents an Act of the Scottish Parliament from modifying the Scotland Act. Section 28(7) is not excepted.
In the earlier Continuity Bill case, the Court held that a protected enactment is modified if a later enactment alters one of its rules, or conflicts with its unqualified continuation in force, even without express amendment or repeal. Making the effect of legislation authorised by Parliament conditional on Scottish Ministers’ consent modified section 28(7), because Parliament cannot meaningfully make laws if those laws have no effect unless someone else consents. That reasoning decided several questions here.
Competence must be capable of decision when a Bill is introduced and, if a reference is made, by the Supreme Court. It cannot be left to emerge only from later cases. Section 101(2) requires a provision that could be read as outside competence to be read as narrowly as is required to bring it within competence, if such a reading is possible.
Reinterpreting Acts of Parliament
Section 19 of the UNCRC Bill required legislation, including an Act of Parliament, to be read and given effect compatibly with the UNCRC requirements so far as possible, where it would have been within Scottish competence to make that legislation. Counsel for the Lord Advocate said that it was modelled on section 3 of the Human Rights Act 1998. The Court recalled that, in Ghaidan v Godin-Mendoza, Lord Nicholls had described section 3 as an unusual and far-reaching duty, which may require a court to depart from the meaning intended by the Parliament that enacted the statute, including by reading in words.
A duty to modify the meaning and effect of Acts of Parliament would qualify Parliament’s law-making power. The qualification would be less complete than rendering a law ineffective, but still inconsistent with section 28(7). It was no answer that Parliament could later disapply or repeal the provision: if it was outside competence, it would not be law. The Scottish Parliament’s power to amend or repeal UK legislation within its own competence did not allow it to authorise another body to alter the effect of Acts of Parliament. Unanimous passage, and the importance of the Convention, did not affect the legal question. A Welsh duty requiring Welsh Ministers to have due regard to the Convention was much narrower. The Lord Advocate accepted that sections 19 to 21 could not be read down under section 101(2).
Section 4(1A) of the Charter Bill imposed a similar interpretative duty, including in relation to Acts of Parliament. It failed for the same reasons.
Striking down and declaring incompatibility
Section 20 would have allowed specified courts to declare that an incompatible provision ceases to be law to the extent of the incompatibility. Unlike a declaration under section 4 of the Human Rights Act, which leaves the provision valid and enforceable, this would invalidate it. The referred wording covered Acts of Parliament which had received Royal Assent before the section came into force.
The Lord Advocate argued that section 28(7) protects only future enactment, so earlier Acts could be deprived of effect. The Court rejected that reading. Parliament inherits existing statutes and may amend them, repeal them, or leave them in force. Leaving them in force is one way of making laws for Scotland. Section 20 would force Parliament either to legislate to preserve that statute book or to leave the Scottish courts to decide which provisions remained law. If the argument were right, the power could be renewed at intervals and Westminster legislation given a short life unless the courts approved it. A power to repeal an Act is not a power to authorise courts to declare that an unrepealed Act has ceased to be law.
Section 21 concerned future legislation, including an Act of Parliament receiving Royal Assent after the section came into force. A court could declare it incompatible with the UNCRC requirements. The declarator would not itself affect validity, operation or enforcement, and would not bind the parties. Even so, it would affect the power protected by section 28(7). Parliament may qualify its own sovereignty, as it did in the Human Rights Act, but the Scottish Parliament cannot.
Three points were decisive. The declarator would condemn an Act of Parliament for failing to meet obligations to which Parliament had not chosen to give domestic effect, and the prospect of that finding would press Parliament to avoid the resulting criticism. Counsel accepted that the finding would mean public authorities implementing the provision were acting unlawfully under section 6, and might be sued and held liable in damages, so the provision could lose practical effect. Scottish Ministers would also have to report on their response, which could include amendment or repeal by remedial regulations. Parliament’s laws for Scotland would then depend on decisions of the courts and the Scottish Ministers.
Section 5(1) of the Charter Bill was similar, and was not limited to later Acts of Parliament. The same reasoning applied.
The duty on public authorities
Section 6 would have made it unlawful for a public authority to act, or fail to act, incompatibly with the UNCRC requirements. Apart from the Scottish Parliament and persons performing functions connected with its proceedings, there was no limit. Proceedings and damages could follow. On its face, the duty could apply to UK Ministers applying Acts of Parliament on reserved matters, and would make compliance a condition of lawfully performing functions required or authorised by Parliament, whether or not those functions were devolved. It was not disputed that the section, read as drafted, was outside competence.
Section 101(2) could not cure this. It is an interpretative rule, used where a generally worded provision can properly be read as limited to devolved matters. Section 6 was carefully drafted as a general rule, subject only to stated exceptions. Applying it subject to every limit in section 29 and Schedules 4 and 5 would amend it, not interpret it. Although section 101(2) and section 3 of the Human Rights Act both use the word “possible”, section 101(2) only directs the court to read the text narrowly if a narrower reading is possible. Used as the Lord Advocate proposed, it would also deprive the pre-enactment checks by the person in charge of the Bill, the Presiding Officer and, on a reference, the Supreme Court of much of their purpose.
Section 101 could resolve a genuine ambiguity in favour of a reading within competence. It did not allow the Court to replace the scope Parliament had deliberately chosen with different limits invented by a judge.
Verdict: The Supreme Court unanimously held 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 European Charter Bill were outside devolved competence. The answers concerned those provisions as drafted, rather than the general objective of incorporating the treaties.
