By Nicholas Kilford
PhD Candidate, University of Cambridge

This Wednesday the Supreme Court will give judgment in two important cases concerning devolution. Each examines the extent of the Scottish Parliament’s law-making power, and where exactly the boundaries of that power lie. What follows is a primer, ahead of those judgments, to illustrate (1) what they are about, (2) why they are important, and (3) what to look out for in the judgments.

What are these cases about?

The Scottish Parliament has powers to make laws for Scotland on a range of issues and, subject to certain restrictions, to amend—modify—Acts of the Westminster Parliament. The Scottish Parliament’s powers to do this—its ‘competences’—have limitations set out in the Scotland Act 1998. If the UK Government is concerned that a piece of Scottish legislation might be outside competence, that legislation can be referred to the Supreme Court. The Supreme Court then decides whether that piece of legislation would be within the Scottish Parliament’s competence to enact. This is precisely what has happened in these cases.

The first piece of legislation, the United Nations Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill, would essentially give citizens new powers to take legal action against authorities who fail to comply with the UNCRC.  Treaties cannot be relied on in UK courts unless they have been incorporated into law by legislation. Although the UK has signed the UNCRC, the Westminster Parliament has not incorporated it into UK law. The Scottish legislation would incorporate the UNCRC into Scottish law, something that has already been achieved in Wales.  The second Bill, the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, does broadly the same but for a different treaty (the European Charter of Local Self-Government).

Why are these Bills potentially problematic? The reference to the Supreme Court is not asking whether it is a good idea to incorporate these treaties into Scottish law, nor does the UK Government doubt that the Scottish Parliament has the power to incorporate international treaties. Instead, it is solely concerned with whether the Scottish Parliament possesses the legal power to pass these Bills. The reason for the references is, therefore, the waythat they attempt to incorporate the treaties. Two key issues are raised in the references.

Firstly, the Bills, among other things, allow Scottish courts to scrutinise (and in some cases ‘strike down’) Westminster’s legislation. The UK Government argues that the Scottish Parliament cannot give Scottish courts the power to scrutinise Acts of the UK Parliament in this way. Importantly, and in a provision the Scottish Parliament cannot ‘modify’, the Scotland Act states that the law-making powers granted to the Scottish Parliament do ‘not affect the power of the Parliament of the United Kingdom to make laws for Scotland’. If these Bills, in empowering the courts in that way, ‘modify’ that provision, they are outside the Scottish Parliament’s legislative competence.

Secondly, can the courts, in giving effect to these Bills, interpret them so that they are within competence? There is a provision in the Scotland Act that requires courts to read the Scottish Parliament’s legislation ‘as narrowly as is required for it to be within competence, if such a reading is possible’. Essentially, the Supreme Court is being asked for guidance on how far this ‘interpretive obligation’ can be stretched: can it save the Bills in question, bearing in mind that they are particularly broad and that reading them narrowly might mean reading them contrary to their purpose?

Why are these Cases Important?

These cases are important because they appear to require the court to opine on two fundamental questions about devolution: its impact on the Westminster Parliament—particularly its ‘sovereignty’—and how far the courts, using their interpretive power, can be relied on to ‘rescue’ legislation that appears to go beyond the Scottish Parliament’s powers.

Devolution has always raised questions about parliamentary sovereignty, especially now (some of) the devolved institutions have been declared to be ‘permanent’. However, the settlement itself, and judicial rulings on it, have consistently maintained that Westminster does remain sovereign despite the decentralisation of legislative power to other institutions. In a way, this is no longer the most important issue. More important is what impact the preservation of parliamentary sovereignty has on the devolved institutions. Does it, for example, paralyse them, delegitimise them, or undermine them?

The interpretive obligation is important because it allows devolved legislation to be passed with the knowledge that courts will sympathetically interpret it, thereby reducing the likelihood that it will be struck down for being outside competence. However, if it becomes too powerful a tool for remedying legislative defects—if courts strain too hard to read legislation as within competence—this will give the devolved legislatures a licence to pass broad, uncertain legislation whose real meaning and impact will be apparent only following litigation.

And of course these legal questions fall to be answered against a political backdrop: the political parties in control of each legislature certainly have something to gain (or lose) from cases like these.

What to Look Out for in the Judgments

We will have to wait for the Supreme Court’s judgments later this week. But, as we do so, it is worth bearing in mind five key constitutional matters on which the judgment might cast fresh light:

What is the Court’s view of key constitutional principles?

The Court might predicate its judgments on a particular view of the constitution, including the status of principles like parliamentary sovereignty and the democratic credentials of the devolved legislatures. Indeed, it is when such principles are confronted in cases like these that we often gain a clearer insight into the detail of the courts’ understanding of them.

What does it mean to ‘modify’ the Scotland Act? Can the Scottish Parliament impose conditions on the legal effect of Acts of the UK Parliament?

How the Court confronts the provision which protects Westminster’s power to make laws for Scotland will be particularly interesting. These Bills would allow Scottish courts to declare certain pieces of Westminster’s legislation incompatible with the relevant treaties, and, in some instances, even strike them down. Furthermore, these Bills mean that a public authority exercising functions given to them by an Act of the Westminster Parliament will need to follow additional requirements (acting compatibly with the treaties) imposed by the Scottish Parliament, with the consequence that damages could be awarded against them if they fail to do so. Is Westminster’s power to make laws for Scotland impaired if damages are awarded in such circumstances, or if UK legislation can be declared incompatible or struck down by a court?

What is the relationship between ‘the power to make laws’ and parliamentary sovereignty itself?

The protection of Westminster’s power to make laws for Scotland might be thought to be a simple declaration of parliamentary sovereignty. However, in a recent case the Supreme Court (fleetingly) distinguished between these two things: the Scottish Parliament could modify Westminster’s ‘power to make laws’ without impacting its sovereignty. Is this a distinction the Court continues to endorse?

The Scottish Parliament can repeal legislation: can it delegate a power to the courts to do the same?

It is clear that the Scottish Parliament can repeal UK legislation that applies to Scotland and deals with matters over which the Scottish Parliament has power. But can that Parliament delegate its repealing power to another institution by authorising courts to strike down Acts of the Westminster Parliament that conflict with UNCRC requirements?

How far does the interpretive obligation stretch?

Because some of the provisions in the Bills are general and could be read as being outside competence, heavy reliance is placed on the courts’ interpretive obligation to read them as being within competence. The Supreme Court will need to decide if this obligation can bear that strain, or whether the Bills themselves need to be clearer as to their reach. If the Supreme Court decides that the courts’ interpretive power is very narrow, this will place a heavy burden on the Scottish Parliament to go further in stipulating specific details in each of its future Bills. If, on the other hand, the Supreme Court stretches the interpretive obligation too far, it risks legal uncertainty, because that will licence the Scottish Parliament to enact vague legislation whose real meaning the courts will have to determine.

As with many cases of this nature, these references thus require the Court to grapple with difficult questions about constitutional balance — between Westminster and the Scottish Parliament, and between courts and legislators. A further post will follow shortly after judgment is given.

Further resources

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