The UK Supreme Court has declared that two bills passed by the Scottish Parliament earlier this year were outside the competence of Holyrood. The bills aimed to incorporate international treaties on children’s rights and local self-government into Scots law, but were challenged by the UK government on the grounds that they would affect the powers of Westminster.
Scottish Parliament’s attempt to protect children’s rights
The UN Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill was unanimously backed by MSPs in March 2023. The bill sought to make the UNCRC part of Scots law, meaning that public authorities would have to act in accordance with the convention and children could challenge any violations of their rights in court.
The bill was widely supported by children’s charities, human rights groups and legal experts, who argued that it would make Scotland a world leader in protecting and promoting the rights of children and young people. The bill was also seen as a response to the UK government’s decision to leave the European Union and the European Convention on Human Rights, which could undermine the existing human rights framework in the UK.
However, the bill was referred to the Supreme Court by the UK law officers, who claimed that it would interfere with the power of the UK Parliament to make laws for Scotland, and therefore breach the Scotland Act 1998, which sets out the devolution settlement. The UK government also argued that the bill would create legal uncertainty and confusion, as the UNCRC contains broad and vague principles that are open to interpretation.
Supreme Court’s unanimous decision
The Supreme Court, composed of seven judges, unanimously decided that four provisions of the UNCRC bill were outside the legislative competence of the Scottish Parliament. The court said that these provisions would affect the power of the UK Parliament to make laws for Scotland, and therefore modify section 28 (7) of the Scotland Act, which states that the UK Parliament can make laws for Scotland on any matter.
The four provisions that were ruled to be incompatible were:
- Section 6, which would require public authorities to act compatibly with the UNCRC and allow children to bring legal action against them if they failed to do so.
- Section 7, which would allow the Scottish ministers to make regulations to ensure compliance with the UNCRC.
- Section 19, which would allow the courts to strike down any legislation that was incompatible with the UNCRC, even if it was passed before the bill came into force.
- Section 26, which would allow the courts to take into account the views of the UN Committee on the Rights of the Child, the body that monitors the implementation of the convention.
The court also ruled that the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, which aimed to give more powers and autonomy to local authorities, was outside the competence of the Scottish Parliament, as it would affect the power of the UK Parliament to legislate for Scotland, and therefore breach section 29 (2) © of the Scotland Act.
Reactions and implications
The Scottish Government expressed its disappointment and frustration with the Supreme Court’s ruling, saying that it was a “blow to the rights of children and young people” and a “setback for devolution”. The Scottish Government also said that it would seek to amend the bills to address the court’s concerns and bring them back to the Scottish Parliament as soon as possible.
The UK Government welcomed the Supreme Court’s ruling, saying that it was a “victory for the rule of law” and a “confirmation of the constitutional settlement”. The UK Government also said that it was committed to respecting the devolution arrangements and working with the Scottish Government on matters of mutual interest.
The Supreme Court’s ruling has significant implications for the future of devolution and human rights in Scotland and the UK. It shows that the UK Parliament still has the ultimate authority over Scotland, and that the Scottish Parliament cannot unilaterally incorporate international treaties into Scots law. It also raises questions about the extent to which the Scottish Parliament can protect and promote the rights of children and other groups in Scotland, especially in the context of Brexit and the potential erosion of the European human rights framework.