New landmark Supreme Court judgement: The Treaty Incorporation Bill References case 

Professor Alison Young and Professor Mark Elliott examined the new landmark judgment which raises several issues of constitutional significance concerning devolution, parliamentary sovereignty, and the Human Rights Act 1998.

The Constitutional Law Matters project, in conjunction with the Cambridge Centre for Public Law, hosted an event chaired by Sir Patrick Elias on 11 November 2021 with Professor Alison Young and Professor Mark Elliott. A recording of the event in now available to watch on YouTube.  

By way of background, the Treaty Incorporation Bill References case involved two Scottish laws which tried to give effect in domestic Scottish law to two treaties (the United Nations Convention on the Rights of the Child and the European Charter of Local Self-Government) that have not been incorporated within the law of the UK. The event specifically focused on the Scottish United Nations Convention on the Rights of the Child (Incorporation) Bill (the ‘UNCRC Bill’), in which the Scottish Parliament had sought to give the United Convention on the Rights of the Child a similar effect in Scottish law to that which the European Convention on Human Rights has in UK through the Human Rights Act 1998. The Supreme Court held that the Scottish Parliament had exceeded its legislative power. Although the Scottish Parliament did enjoy a power to incorporate the UNCRC in Scottish law, the way in which it had tried to achieve this went beyond its powers. In particular, the UK Supreme Court concluded that it modified the Scotland Act 1998 as it altered the ability of the Westminster Parliament to make law for Scotland. The key implications arising out of the case concern our understanding of parliamentary sovereignty as well as our understanding of the devolution settlement. It also provides an assessment of whether the enactment of the Human Rights Act 1998 modified the sovereignty of the Westminster Parliament. This may have implications for the current independent review on the Human Rights Act.  

The novelty of this case stimulated a number of questions from the audience including questions about the interpretation of the Bill, the political implications of and background to the case, and the interpretation of the Human Rights Act 1998.  

For more information about Constitutional Law Matters, please contact the project’s Research Associate, Joanna George, or the project’s Research Assistant, Dora Robinson, via contactclm@law.ac.uk.uk.  

Further resources 

• Holyrood, Westminster and Constitutional Balance: Two Forthcoming Judgements  
• The UNRC Reference: What did we learn?