The Supreme Court has today handed down its judgment on two important references concerning the legislative competence of the Scottish Parliament.
The Scottish Parliament had passed two Bills containing provisions which sought to grant the Scottish courts extensive powers to interpret and scrutinise primary legislation passed by the UK Parliament, where this was incompatible with the United Nations Convention on the Rights of the Child or the European Charter of Local Self-Government. However, the Supreme Court held that those provisions would be outside the legislative competence of the Scottish Parliament on their face as they affected the power of Parliament to make laws for Scotland; and could not be read narrowly under the interpretative obligation in section 101(2) of the Scotland Act 1998 so as to bring them within competence.
In relation to the effect of the provisions on their face, the Supreme Court applied much of its reasoning from the Continuity Bill case (In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64), observing in relation to one provision that the distinction between the two cases was merely one of degree which did not affect the legal analysis.
As for the possibility of adopting a narrow reading to bring the provisions within competence under section 101(2) of the Scotland Act 1998 (which is materially identical to the equivalent provision in s154(2) of the Government of Wales Act 2006), the Supreme Court gave useful guidance as to the scope of this interpretative duty: the Supreme Court held that its use was not confined to the resolution of linguistic ambiguities but, nevertheless, it could not be construed as expansively as section 3 of the Human Rights Act 1998. Applying that approach to the facts, it noted that s101(2) could not be used to impose corrective limitations on a provision which had been deliberately drafted to exceed legislative competence. Such a provision violated Lord Bingham’s first characteristic of the rule of law, namely that the law must be intelligible and clear.
The effect of the Supreme Court’s decision is that the Bills will return to the Scottish Parliament so that these issues can receive further consideration.
Helen Mountfield QC and Mark Greaves were instructed on behalf of the Counsel General for Wales in these references.