In this article Joanna Clark, a Professional Support Lawyer at CMS, comments on the recent UK Supreme Court’s decision on the Scottish Parliament’s attempt to incorporate (1) the United Nations Convention on the Rights of the Child and (2) the European Charter of Local Self-Government into Scots law, and whether such actions are within the Scottish Parliament’s devolved competencies,
On 6 October 2021, the Supreme Court gave its decision on two references by the Attorney General and the Advocate General for Scotland (the “UK Law Officers”) in relation to two Bills that had been passed by the Scottish Parliament: (1) The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (“UNCRC Bill”) and (2) the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (“ECLSG Bill”). Both Bills seek to incorporate international treaties into domestic Scots law that have been ratified by the UK, but not incorporated into domestic UK law.
The references, made under s 33(1) of the Scotland Act 1998, required the court to determine whether certain provisions in each of the Bills (namely ss 6, 19(2)(a)(ii), 20(10)(a)(ii) and 21(5)(b)(ii) of the UNCRC Bill and ss 4(1A) and 5(1) of the ECLSG Bill) were within the legislative competence of the Scottish Parliament.
It was not suggested by the UK Law Officers that the Scottish Parliament could not seek to incorporate these treaties into domestic law in some form, rather it was said that the Bills as drafted would place obligations on UK Government ministers and affect the UK Parliament’s power to make laws for Scotland in reserved areas which would be contrary to the devolution settlement. Accordingly, these should be sent back to the Scottish Parliament for appropriate amendments to be made.
The UNCRC Bill
The Scottish Government has indicated its intention to take a number of steps to strengthen and develop the legal framework for human rights in Scotland and the UNCRC Bill represents one of the first of these steps.
The substantive rights in the UNCRC are wide-ranging. They include health, education and economic rights, equality and non-discrimination rights, freedom of expression, thought, religion and assembly rights, protection from exploitation and abuse, privacy rights, the right to play, and the right to participate in cultural and artistic life. The explanatory notes to the UNCRC Bill explain that the Bill takes a “maximalist approach” to the UNCRC, fully incorporating its terms subject only to limited amendments designed to address the issues of devolved competence.
The Scottish Government has stated its intention to incorporate other international human rights treaties into domestic Scots law. A government-led taskforce, the National Taskforce for Human Rights Leadership, published a report in March 2021, recommending, amongst other measures, the incorporation of four other international human rights treaties. These are the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Rights of Persons with Disabilities (CRPD).
The ECLSG Bill
The ECLSG Bill is a private members Bill introduced by Andy Wightman MSP (then of the Scottish Green Party) with the stated aim of strengthening the status and standing of local government. This sought to incorporate Articles 2-11 of the ECLSG into Scots law.
The issues before the court
The court focused on two issues:
Whether the Bills, in bestowing certain powers on the Scottish courts to scrutinise and interpret UK legislation, modify the terms of s 28(7) of the Scotland Act 1998 and are therefore outside the legislative competence of the Scottish Parliament; and
Whether certain provisions of the Bills required to be “read down” in order to come within legislative competence. In that regard, guidance was sought on s 101(2) of the Scotland Act 1998 which states that if a provision of an Act of the Scottish Parliament could be read as being outside legislative competence, that provision is to be “read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.”
The court agreed with the UK Law Officers that the provisions which had been identified were outside the legislative competence of the Scottish Parliament.
Provisions stating that Acts of the UK Parliament were to be read and given effect in a way which was compatible with the UNCRC or ECLSG. The court was of the view that, as drafted, these provisions would require the courts to interpret UK statutory provisions in a way that would conflict with the meaning intended by the UK Parliament;
Provisions enabling the courts to make declarators of incompatibility or strike down provisions of Acts of the UK Parliament which were incompatible with the UNCRC or ECLSG. The court was of the view that, as drafted, these provisions would affect the power of the UK Parliament to make laws for Scotland; and
In the case of the UNCRC Bill, a provision making it unlawful for any public authority to act incompatibly with the UNCRC. It was accepted by the Lord Advocate that this particular provision was, on the face of it, plainly outside legislative competence. The Lord Advocate argued that it would be capable of being “read down” in terms of s 101(2) of the Scotland Act 1998, however, the court rejected this.
Quoting Lord Bingham (The Rule of Law (2010)), Lord Reed noted that “the law must be accessible and so far as possible intelligible, clear and predictable”. He also referred to various passages from case law including Lord Diplock’s observations in Fothergill v Monarch Airlines Ltd  AC 251, 279:
“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 (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.”
Lord Reed stated that s 101(2) could not have been intended to enable the courts to rewrite provisions which were, on their face, unambiguously outside legislative competence. The limitations of a Bill should be clear upfront and should not require to be confirmed through corrective limitations imposed by the courts on a case-by-case basis.
Lord Reed also referred to the various safeguards within the Scotland Act 1998 which were designed to ensure the legislative competence of Bills. For example, s 31(1) requires the person in charge of the Bill to make a statement as to its legislative competence, s 31(2) requires the Presiding Officer of the Scottish Parliament to separately consider and determine the issue of legislative competence, and the Scottish Ministerial Code requires Bills to be cleared by the Scottish law officers. The approach suggested by the Lord Advocate to s 101(2) would circumvent those safeguards.
The court concluded that the two Bills would require to return to the Scottish Parliament for reconsideration and amendment.
Following the publication of the court’s decision, the Scottish Government has confirmed, in relation to the UNCRC Bill, that it will be proceeding with that Bill and, in relation to the ECLSG Bill, that it will liaise with the new designated MSP in charge of it on the best way forward.
One point that was not contested in these references was whether it was within the legislative competence of the Scottish Parliament to incorporate international human rights law into domestic Scots law. It will therefore be open to the Scottish Government to proceed with incorporation of the UNCRC and other treaties, subject to making it clear that the relevant legislation will apply only to devolved matters.
Questions have been raised as to whether the decision has implications for other future legislation, in particular, any Bill seeking to allow another independence referendum without the consent of the UK Government.
The devolution settlement reserves to the UK Parliament various aspects of the constitution, including “the Union of the Kingdoms of Scotland and England” (Scotland Act 1998, Sch 5, para 1(b)). The meaning of that provision is yet to be considered by the courts (Note: the Court of Session declined to opine on the matter in Keatings v Advocate General  CSOH 16 on the basis that it was a hypothetical question in that case). Some argue that it means that any Bill seeking to hold an independence referendum without consent would be outside the legislative competence of the Scottish Parliament. Others argue that it would be within competence, since any referendum would not itself legally determine the question of independence but would simply invite the public’s views on the question. In this regard it may be worth noting these observations of Lord Reed in this decision on the proper approach to interpreting the Scotland Act 1998:
“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.”