How competent is Scotland’s parliament?
The UK government is asking the Supreme Court to decide whether two bills passed by the Scottish parliament go beyond its legislative competence. They are
the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill; and
the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
As a devolved assembly, the Scottish parliament has only the powers it was given by the Westminster parliament when it passed the Scotland Act 1998. Section 33 of that act allows the UK government’s law officers “to refer the question of whether a bill or any provision of a bill would be within the legislative competence of the [Scottish] parliament to the Supreme Court for decision”. The law officers have four weeks to do so from the date the bill is passed. It cannot be brought into force in the meantime.
The UNCRC bill was passed on 16 March and the referral was filed by the UK government at the Supreme Court on Monday. Standard practice seems to be to allow a devolved government as long as possible to change its mind. The Charter bill was passed a week later and so the government is expected to refer that bill to the court next week.
Once such a bill has been referred to the Supreme Court, its provisions cannot be submitted for royal assent unless and until the court has decided that they are within the Scottish parliament’s competence.
Although reporters were briefed on Monday, the UK government has made no formal public announcement this week, either because of the death of Prince Philip or because of forthcoming elections to the Scottish parliament — or both.
However, the Scottish Secretary made the UK government’s position clear just before the pre-election period started. Alister Jack’s office said:
The UK government’s concerns with the UNCRC bill are not about policy in areas devolved to the Scottish parliament. They are about the fact that, as currently drafted, the bill may be seen to place legal obligations on UK government ministers in reserved areas, and would impact UK parliament legislation. That would be outwith the legislative competence of the Scottish parliament. The Charter bill also contains provisions which could impact on UK parliament legislation…
The UK government has previously asked the Scottish government to make the following changes to the UNCRC bill to bring it within competence:
Ensure that the bill does not apply to any legislation passed by the UK parliament.
Amend the duties set out in the bill so that they do not apply to UK government ministers when exercising reserved functions in Scotland.
The Scottish government has declined to make changes.
Only one bill passed by the Scottish parliament has previously been referred to the Supreme Court. After a two-day hearing in the summer of 2018, the court decided that some parts of the bill were beyond the parliament’s competence.
All this is a dry run for a much more important reference to the Supreme Court. If the Scottish National Party does well enough in the elections on 6 May, it is expected to ask the Scottish parliament to pass legislation authorising a second referendum on Scottish independence.
I discuss what that would mean in a piece recently published in The Critic magazine, which you can read online. Better still, visit your local newsagent and buy a copy. Or try five issues for £10.
The lord advocate — the Scottish government’s law officer — can also refer a bill to the Supreme Court, presumably in the hope that the court will confirm that its is within the parliament’s competence. That has never happened. But the counsel general for Wales referred the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill to the Supreme Court in 2014. The court decided it was outside the Welsh assembly’s competence.