Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill
| Jurisdiction | Scotland |
| Judge | Lord Lloyd-Jones,Lord Sales,Lord Reed,Lord Stephens,Lord Hodge |
| Judgment Date | 06 October 2021 |
| Neutral Citation | [2021] UKSC 42 |
| Docket Number | No 1 |
| Year | 2021 |
| Court | Supreme Court (Scotland) |
[2021] UKSC 42
Lord Reed, President
Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Sales
Lord Stephens
Supreme Court
Michaelmas Term
Applicants
Sir James Eadie QC
David Johnston QC
Christopher Pirie
Christopher Knight
(Instructed by Office of the Advocate General for Scotland)
1 st Respondent
James Mure QC
Paul Reid
Lesley Irvine
(Instructed by Scottish Government Legal Directorate)
2 nd Respondent
Helen Mountfield QC
Christian J Howells
Mark Greaves
(Instructed by Welsh Government Legal Services Department)
Applicants:
(1) Her Majesty's Attorney General
(2) Her Majesty's Advocate General for Scotland
Respondents:
(1) Lord Advocate
(2) Counsel General for Wales
Heard on 28 and 29 June 2021
( with whom Lord Hodge, Lord Lloyd-Jones, Lord Sales and Lord Stephens agree)
On 16 March 2021 the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (“the UNCRC Bill”). On 23 March 2021 it passed the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (“the ECLSG Bill”).
Her Majesty's Attorney General and Her Majesty's Advocate General for Scotland have referred to the Supreme Court the question whether certain provisions of those Bills would be within the legislative competence of the Scottish Parliament, under section 33(1) of the Scotland Act 1998 (“the Scotland Act”). The references have been made in respect of 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 ECLSG Bill, all of which are set out below.
The Bills are designed to give effect to two treaties to which the UK is a signatory: the United Nations Convention on the Rights of the Child (“the UNCRC”) and the European Charter of Local Self-Government (“the ECLSG”). The UNCRC was ratified by the UK in 1991. It is reflected in a number of provisions of domestic law, but has not been incorporated as a whole. The UNCRC Bill would incorporate a version of the UNCRC as scheduled to the Bill. The ECLSG was ratified by the UK in 1998. It too is reflected in a number of provisions of domestic law, but has not been incorporated as a whole. The ECLSG Bill would incorporate a version of the ECLSG as scheduled to the Bill.
Neither reference takes issue with the Scottish Parliament's decision to incorporate the UNCRC and the ECLSG. That is recognised to be a matter for the Scottish Parliament. The references reflect concerns that some of the provisions of the Bills would impinge on matters which lie outside the legislative competence of the Scottish Parliament.
In broad terms, two principal questions of law are raised. The first is whether certain of the provisions would affect the power of Parliament to make laws for Scotland, thereby modifying section 28(7) of the Scotland Act, in breach of the limitation on the Scottish Parliament's competence imposed by section 29(2)(c) of that Act. The second question is whether certain provisions which, on their face, admittedly exceed the legislative competence of the Scottish Parliament, can be interpreted as being within its competence by means of recourse to the interpretative obligation set out in section 101(2) of the Scotland Act.
The answers to these questions are potentially relevant not only to the Scottish Parliament but also to the other devolved legislatures of the UK. The Counsel General for Wales has therefore been represented in these proceedings and has presented submissions to the court. We are grateful for his assistance.
Since the Scottish Parliament commenced its work on 2 July 1999, the courts have had a number of occasions to interpret the law by which it is governed. The main principles were summarised by this court in the Continuity Bill case ( In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64; [2019] AC 1022, para 12). The Scottish Parliament is a democratically elected legislature with a mandate to make laws for Scotland. It has plenary powers within the limits of its legislative competence. But it does not enjoy the sovereignty of the Crown in Parliament: rules delimiting its legislative competence are found in section 29 of and Schedules 4 and 5 to the Scotland Act, to which the courts must give effect. And Parliament also has an unlimited power to make laws for Scotland, a power which the legislation of the Scottish Parliament cannot affect: section 28(7) of the Scotland Act. The Scotland Act must be interpreted in the same way as any other statute. The courts have regard to its aim to achieve a constitutional settlement and therefore recognise the importance of giving the Scotland Act a consistent and predictable interpretation, so that the Scottish Parliament has a coherent, stable and workable system within which to exercise its legislative power. That is achieved by interpreting the rules as to competence in the Scotland Act according to the ordinary meaning of the words used.
Section 28(1) of the Scotland Act provides:
“Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.”
The opening words of that provision make it clear that the legislative competence of the Scottish Parliament is not unlimited. Section 28(7) provides:
“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”
That provision makes it clear that the power of the Scottish Parliament to make laws, conferred by section 28(1), does not affect the power of Parliament also to make laws for Scotland. That reflects the nature of devolution, and the fact that the people of Scotland continue to be democratically represented at Westminster as well as at Holyrood.
Section 29(1) provides:
“An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”
Section 29(2) provides, so far as material:
“A provision is outside that competence so far as any of the following paragraphs apply —
(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4.”
Schedule 4 lists provisions which are protected from modification by an Act of the Scottish Parliament. In particular, paragraph 2(1) provides:
“An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.”
Reserved matters are defined by Schedule 5. It is also necessary to note paragraph 4(1) of Schedule 4, which provides:
“An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, this Act.”
Paragraph 4(2) creates a number of exceptions to that general rule, but the exceptions do not include section 28(7). Accordingly, an Act of the Scottish Parliament cannot modify section 28(7).
The meaning of “modify” was considered in the Continuity Bill case. The court stated at para 51:
“Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.”
Applying that approach, the court held that a provision in the Bill there in question, which made the legal effect of subordinate legislation made under powers conferred by Parliament conditional on the consent of the Scottish Ministers, would modify section 28(7) of the Scotland Act, since it would render the effect of laws made by Parliament conditional on the consent of the Scottish Ministers. As will appear, that decision provides the answer to several of the questions raised in the present proceedings.
In relation to the enforcement of the limitations upon the legislative competence of the Scottish Parliament, the Scotland Act creates a number of safeguards. The first two safeguards apply on or before the introduction of a Bill. First, section 31(1) requires that the person in charge of the Bill must make a statement that in his view the provisions of the Bill would be within the legislative competence of the Scottish Parliament. The Scottish Ministerial Code requires that, in the case of a Government Bill, the statement by the sponsoring Minister to that effect will have been cleared by the Law Officers (Scottish Ministerial Code, 2018 edition, para 3.4).
Secondly, section 31(2) requires that the Presiding Officer of the Scottish Parliament must decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Scottish Parliament, and state his decision. An adverse decision by the Presiding Officer does not prevent the Bill from being introduced, but it is an important signal to the Scottish Parliament, and to the Law Officers of both the Scottish and the UK Governments, and may influence their decision whether, in due course, to make a reference to this court.
It follows from the existence of these two safeguards that it must be possible for the person...
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