References (Bills) by the Attorney General and the Advocate General for Scotland (Scotland) [2021] UKSC 42

The UK Supreme Court held that several provisions of the Scottish Parliament's UNCRC and ECLSG Incorporation Bills exceeded legislative competence by modifying section 28(7) of the Scotland Act 1998, which preserves Westminster's unqualified power to legislate for Scotland. The Bills attempted to subject UK Parliament Acts to judicial interpretation and invalidation.

Facts

On 16 March 2021, the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, followed on 23 March 2021 by the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. Both Bills sought to incorporate international treaties into Scots law. The Attorney General and Advocate General for Scotland referred questions to the Supreme Court under section 33(1) of the Scotland Act 1998 regarding whether certain provisions exceeded the Scottish Parliament’s legislative competence.

The Challenged Provisions

The references concerned sections 6, 19, 20, and 21 of the UNCRC Bill, and sections 4 and 5 of the ECLSG Bill. These provisions would have required courts to interpret UK Parliament legislation compatibly with the UNCRC requirements, empowered courts to strike down or declare incompatible Acts of Parliament, and imposed duties on public authorities regarding UNCRC compliance.

Issues

The principal legal questions were: (1) whether provisions subjecting Acts of Parliament to interpretative obligations or judicial review would modify section 28(7) of the Scotland Act, which provides that devolution does not affect Parliament’s power to make laws for Scotland; and (2) whether section 101(2) of the Scotland Act could be used to interpret provisions that clearly exceeded competence as being within competence.

Judgment

Modification of Section 28(7)

Lord Reed, delivering the unanimous judgment, held that all challenged provisions would unlawfully modify section 28(7) of the Scotland Act. Applying the reasoning from the Continuity Bill case, the court found that provisions requiring courts to modify the meaning of Acts of Parliament would impose qualifications upon Parliament’s legislative power.

A provision which required the courts to modify the meaning and effect of legislation enacted by Parliament would plainly impose a qualification upon its legislative power. The qualification would be lesser in degree than in the Continuity Bill case, but equally inconsistent with section 28(7) of the Scotland Act.

Regarding section 20’s power to strike down Acts of Parliament, Lord Reed stated:

The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution.

Section 101(2) and the Limits of Interpretation

The court rejected arguments that section 101(2) could cure provisions deliberately drafted beyond competence. Lord Reed emphasised the fundamental difference between section 101 and section 3 of the Human Rights Act 1998:

Section 101(2) cannot have been intended to enable the courts to undertake, in substance, a rewriting of provisions enacted by the Scottish Parliament, which on their face are plainly and unambiguously outside its legislative competence.

The court noted that accepting such an approach would render the pre-enactment safeguards in sections 31-33 of the Scotland Act nugatory.

Rule of Law Considerations

Lord Reed emphasised that the rule of law requires legislation to be accessible, intelligible, clear and predictable:

Elementary justice or, to use the concept often cited by the European Court [of Justice], the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him… by reference to identifiable sources that are publicly accessible.

Implications

This judgment clarifies important constitutional limits on devolved legislatures. It confirms that devolved parliaments cannot subject Acts of Westminster to interpretative obligations or judicial invalidation mechanisms without modifying the protected power of Parliament to legislate. The decision also establishes that section 101(2) cannot be used to cure provisions deliberately drafted beyond competence, maintaining the integrity of pre-enactment scrutiny procedures. The case has significance for all devolved legislatures in the United Kingdom.

Verdict: The Supreme Court answered all questions in the affirmative: sections 19(2)(a)(ii), 20(10)(a)(ii), 21(5)(b)(ii), and 6 of the UNCRC Bill, and sections 4(1A) and 5(1) of the ECLSG Bill, would all be outside the legislative competence of the Scottish Parliament because they would modify section 28(7) of the Scotland Act 1998, contrary to section 29(2)(c). Section 6 additionally related to reserved matters and would modify the law on reserved matters.

Source: References (Bills) by the Attorney General and the Advocate General for Scotland (Scotland) [2021] UKSC 42