Truth Bill Out: Supreme Court find that Scottish Government has Legislated Beyond its Powers

October 15, 2021

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2 min read

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What's going on here?

The Supreme Court has ruled that provisions in two bills passed by Members of the Scottish Parliament (MSPs) were beyond Holyrood’s legislative powers.

What does this mean?

When the Scottish Parliament passes a bill there is a four-week period during which the UK government can challenge the planned law using powers enshrined in the Scotland Act 1998. In March, MSPs unanimously passed two bills which incorporated international treaties into Scottish law: 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). A challenge was made by UK law officers and the Supreme Court considered the case at a hearing in June. 

The Scotland Act provides that the UK Parliament has unqualified powers to make laws for Scotland. Both the UNCRC and ECLSG Bills contained provisions which granted Scottish courts powers to strike down UK Acts of Parliament or declare future Acts incompatible with the treaties. In the judgment delivered by Lord Reed on Wednesday 6 October the Supreme Court held that three provisions contained within the UNCRC Bill and two within the ECLSG Bill were beyond Holyrood’s legislative powers. If they were to become law, the Bills would impliedly amend the Scotland Act as the UK Parliament’s powers to legislate in Scotland would no longer remain unqualified. The bills must now return to Holyrood where they will be reconsidered to reflect the court’s ruling.

What's the big picture effect?

This judgment raises important questions about the nature of the devolution settlement and illustrates that Westminster’s unqualified power to legislate in Scotland cannot be impinged by laws passed by Holyrood, even if such laws concern devolved matters. John Swinney, Scotland’s Deputy First Minister, stated that the ruling “lays bare the weaknesses” of the settlement. Additionally, First Minister Nicola Sturgeon took to Twitter to stress the need for independence in light of the judgment. Meanwhile, opposition to the Scottish National Party (SNP) have accused ministers of “shamefully using children’s rights to play unconstitutional games”. Rival MSPs felt that the SNP politicised the Bills, deliberately ensuring that they would end up in the Supreme Court to reignite a constitutional debate with the UK ahead of the Holyrood elections earlier this year. During the delivery of the judgement Lord Reed was also critical of the Bills, stating that they were intentionally drafted to exceed Holyrood’s legislative powers.

Should a second referendum bill be passed by MSPs in the future it is thought that it might be referred to the Supreme Court in the same manner as the UNCRC and ECLSG Bills. This would consequently spark a major constitutional row about the limits of the devolved competence of the Scottish Parliament. 

Whether or not the SNP’s grievance regarding Scottish independence was prioritised over good governance, the burden lies with the Scottish Parliament to act quickly to produce revised bills if they wish to ensure that children’s rights are not undermined.

Report written by Lucy Reynolds

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