Reference by the Attorney General and the Advocate General for Scotland: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill

Scottish Bills that would have restricted the UK Parliament's power to legislate for Scotland were outside competence.

Citation
[2021] UKSC 42
Court
UK Supreme Court
Year
2021
Subject
Public Law
Topic
Conventions, ministers and devolution

Facts

The Scottish Parliament passed two Bills, one incorporating the United Nations Convention on the Rights of the Child into Scots law, and the other incorporating the European Charter of Local Self-Government. Both Bills included provisions allowing the Scottish courts to declare Acts of the UK Parliament, so far as they applied in Scotland, to be incompatible with the rights in the Conventions, and to read them in a compatible way. The UK Government's law officers referred the Bills to the Supreme Court.

Legal principle

The Supreme Court held that the challenged provisions were outside the competence of the Scottish Parliament. Lord Reed said that section 28(7) of the Scotland Act 1998 preserves the power of the UK Parliament to make laws for Scotland, and that this reflects the continuing sovereignty of the UK Parliament. A provision of an Act of the Scottish Parliament would modify section 28(7) if it qualified the UK Parliament's power by putting pressure on it to legislate in a certain way, or restricting the effect of its legislation in Scotland. The provisions requiring Scottish courts to interpret UK Acts compatibly, and to make declarations about them, had that effect.

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