Dr Chris McCorkindale explores the political, legal and constitutional factors behind the UK Government's decision to refer two Acts of the Scottish Parliament to the Supreme Court.
Which bills have been referred to the Supreme Court, and why?
Section 33 of the Scotland Act 1998 enables the law officers of the UK and Scottish Governments – during a four week period that begins with a bill’s passage - to refer Scottish Parliament bills to the Supreme Court where there is doubt about legislative competence. On April 12th the UK Government made two such references. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill is a Scottish Government bill that aims to enhance the protection of children’s rights in Scotland by incorporating the UNCRC into domestic law. The European Charter of Local Self-Government (Incorporation) (Scotland) Bill is a Members’ Bill introduced by an independent MSP, Andy Wightman, that aims to strengthen the status and standing of local government in Scotland by incorporating the Charter Articles into domestic law. Having waited 19 years for the first reference of a Scottish bill, the Continuity Bill Reference, these will be the second and third such references from Scotland. Whereas the Continuity Bill split the Presiding Officer and the responsible Minister on the question of legislative competence, and whereas the Parliament, when voting, split along political lines, the legislative competence of both the UNCRC Bill and the Local Self-Government Bill were affirmed by the Presiding Officer and the responsible Minister/Member upon their introduction, and in each case the bills were unanimously passed by the Parliament.
The basis of the challenge to the UNCRC Bill is two-fold. The first objection relates to obligations that the bill would place on public authorities (including UK authorities) to act compatibly with UNCRC requirements (s 6). A second set of objections relate to obligations that it would place on the courts, where it is possible to do so, to interpret legislation (including Acts of the UK Parliament), compatibility with UNCRC requirements, as well as to the discretion that it would grant to courts – where a compatible reading is not possible – to strike down incompatible pre-enactment legislation or to declare post-enactment legislation (including Acts of the UK Parliament) to be incompatible with those requirements (ss 19-21). The basis of the challenge to the Local Self-Government Bill is, similarly, to the obligation it would place on courts to interpret legislation (including Acts of the UK Parliament) compatibly with the Charter (s 4) and, where such a reading is not possible, to declare legislation to be incompatible with its Articles (s 5). In each case, it is argued, inter alia, that that the obligations relating to UK public authorities and/or to Acts of the UK Parliament amount to unlawful modifications of section 28(7) of the Scotland Act, which explicitly preserves the power of the UK Parliament to make laws for Scotland, devolution notwithstanding.
What is the nature of the reference power?
The power of law officers to refer bills to the Supreme Court is just that: a power. There is no duty – no requirement – for law officers to refer any and every bill that they believe could sit outside of the Scottish Parliament’s legislative competence. Rather, a range of legal and political considerations is taken into account when deciding whether to refer. For UK law officers, legal considerations might include, inter alia, how the Supreme Court is likely to interpret a bill’s provisions in light of the tests for legislative competence set out in the Scotland Act; any ambiguity caused by conflicting statements on legislative competence by the Presiding Officer and the Minister or Member responsible for the bill; or, whether it is possible to interpret the contentious provisions narrowly so as to bring them within legislative competence. Political considerations might include, inter alia, the importance of the rights and interests at stake for the UK Government; the likelihood that a private party will raise a post-legislative challenge; or, with the prospect of an independence referendum in the background, the possibility that a reference by the UK Government, to the UK Supreme Court, of a Scottish Parliament bill might stoke nationalist flames.
The lack of references from Scotland during the first twenty years of devolution is therefore a poor indicator of agreement about legislative competence between the UK Government and those responsible for Scottish Parliament bills during that time. Rather, we know that there have been a number of bills during that period, and no doubt more since, about which the UK law officers have privately expressed their doubts as to the competence of Scottish Parliament bills but, for legal and/or political reasons, have decided not to make a reference. Put in context, whilst it is clearly the case that these references are ‘about the legal competence, not the policy merits, of the two [bills]’ and whilst it might plausibly be argued that the government is ‘absolutely right to refer those doubts to the Supreme Court for a ruling’ it is nevertheless of significant political and constitutional interest that the UK Government has taken the decision to make them during an election period that is dominated by the independence question and where, previously, the political calculation might have led to a different (more cautious) conclusion.
What to expect, then, now that the decision has been taken to refer these bills. We might usefully consider this in three parts: political, legal and constitutional.
Politically, the response by the Scottish Government has been to portray the reference of the UNCRC Bill as ‘morally repugnant’. First, they say, because any strike down would ‘protect [the ability of the UK Government] to legislate/act in ways that breach children’s rights in Scotland’. It was perhaps anticipating this line of attack that the UK Government took the decision to refer both bills together. Second, because (as with the Local Self-Government Bill) the UNCRC Bill was passed unanimously and therefore represents the unambiguous democratic will of the Scottish Parliament. At the same time, the Scottish Government itself stands accused of ‘weaponising’ children’s rights in order to ‘stir up constitutional chaos’ by provoking a reference. However, this charge is somewhat weakened by the similarity of the issues at play in the Local Self-Government Bill – a Members’ Bill about which independent legal advice was sought. In each case, exaggerated and simplified claims about (complex) legislative or litigation strategies serve as proxies for the constitutional disagreements that run through the forthcoming Scottish Parliament elections and the referendum campaigns that might follow.
Legally, the unanimous passage of these bills by the Scottish Parliament is irrelevant. As Lord Reed has said, the legal limits placed on devolved competence are themselves contained in legislation ‘passed by a representative and democratically elected Parliament’ and it is ‘the function of the courts to interpret and apply those limits [not to] undermine democracy but protect it’. Likewise, the assessments made by the Presiding Officer as to the competence of these bills are irrelevant to the court’s assessment of legality – important legislative hurdles to cross but, in the words of Lord Hope, ‘no more than statements of opinion which do not bind the judiciary’. It is a fool’s errand to predict what the Supreme Court might decide – particularly as the basis of the section 28(7) challenges are themselves grounded in the surprising (and not entirely clear) judgment in the Continuity Bill Reference that what previously had been considered to be a symbolic restatement in statute of the principle of parliamentary sovereignty has in fact created additional and free-standing limits to the law-making powers of the Scottish Parliament. Regardless of the outcome of these references, one might hope for greater clarity and guidance from the court about the interpretation and application of these limits, which have the potential to narrow (and with regard to the further incorporation of international treaties – a key plank of the Scottish Government’s plans to broaden and deepen the protection of human rights - quite significantly to narrow) the scope and effectiveness of devolved competence.
Constitutionally, that decisions were taken to make these references at all during an election period dominated by the independence question – and where the optics of these challenge are, as we have seen, so vulnerable to political manipulation – might tell us something about a more general, still emerging, trend. Alongside new powers for UK Ministers to spend money in devolved areas, and a seemingly resolute determination from Number 10 to refuse a section 30 Order to hold an independence referendum whatever the result of May’s Scottish Parliament elections, these references are indicative of a more assertive (or, depending on one’s view, a more intrusive) approach from the centre to devolution and the union. Whisper it, they might tell us something too about the readiness of the UK law officers to see the Scottish Government back in court if the latter presses ahead with plans to introduce an independence referendum bill, with or without a section 30 Order, in the next parliament.
Christopher McCorkindale is a Senior Lecturer in Law at the University of Strathclyde