Supreme Court hears important devolution references


The Supreme Court will, today and tomorrow, hear two references concerning the legislative competence of the Scottish Parliament in relation to Bills which seek to incorporate, into Scots Law, the United Nations Convention on the Rights of the Child and the European Charter of Local Self-Government.

The references raise two key issues:

  • First, both Bills contain provisions which would grant the Scottish courts extensive powers to interpret and scrutinise primary legislation passed by the UK Parliament. There is an issue as to whether these provisions modify s28(7) of the Scotland Act 1998 (which recognises “the power of the Parliament of the United Kingdom to make laws for Scotland”) and are therefore outside competence.
  • Second, there is an issue as to the scope and effect of s101(2) of the Scotland Act 1998 generally, as well as its application to the referred provisions in the Bills. S101(2) provides that a provision that could be read in such a way as to be outside competence must be read as narrowly as is required for it to be within competence, if such a reading is possible. The circumstances in which this provision applies, and what constitutes a “possible” reading, fall to be determined as part of these references.

The Counsel General for Wales is one of the Respondents in this case as the constitutional principles raised have implications for the interpretation of Senedd legislation. s28(7) and s101(2) of the Scotland Act 1998 are substantially identical to the equivalent provisions at s107(5) and s154(2) of the Government of Wales Act 2006.

Helen Mountfield QC and Mark Greaves are instructed on behalf of the Counsel General for Wales in these references.