Tuesday, 13 April 2021

Sturgeon claims that UK government's reference to Supreme Court is "morally repugnant"

The Guardian 12 April - "Nicola Sturgeon (First Minister Scotland) has condemned the UK government’s decision to refer two bills passed by Holyrood unanimously to the supreme court as “morally repugnant” amid an outcry from MSPs." - The Guardian - Nicola Sturgeon blasts decision to refer Holyrood Bills to Supreme Court.

Does this claim withstand scrutiny? Here, I respectfully argue that it does not.  It is a technical question of legal competence.

What is Scotland wishing to do?

The Scottish Parliament is seeking to incorporate into Scots Law (a) the United Nations Convention on the Rights of the Child (UNCRC) and (b) the Council of Europe's European Charter of Local Self-Government

The UNCRC has bound

the UK in international law since 1992 but has not, so far, been incorporated into either English law or Scots Law. Nonetheless, many aspects of the Charter are underpinned by domestic legislation applying in the various parts of the UK - see UK Government - How legislation underpins implementation in England and Scottish Government - Incorporating the UN Convention on the Rights of the Child into Scots Law.

The European Charter of Local Self-Government has applied to the UK since 1 August 1998

References to the Supreme Court of the UK:

When devolution first took place in 1998 provision was made for references to the Judicial Committee of the Privy Council.  When the Supreme Court of the UK was created it acquired this jurisdiction.

Section 33 of the Scotland Act 1988 provides that the Lord Advocate or the Attorney General may 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.

What is the problem?

Nicola Sturgeon spoke in the run up to the Scottish Parliamentary election on 6 May but the UK government is NOT acting in a "morally repugnant" way to somehow deny Scottish children their rights under the UNCRC. 

The legal questions relate to the legislative competence of the Scottish Parliament which, under the devolution settlement, has limits on its powers. Therefore, once the politics are disregarded, the dispute becomes a rather dry, technical legal issue even though it is one of importance.

The UK government is concerned that Clause 6 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill could place legal obligations on UK ministers in reserved areas. Further, it is argued that Clauses 19-21 of the Bill could affect the power of the UK Parliament to legislate for Scotland.

Regarding the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, the concern is that Clauses 4 and 5 could affect the power of the UK Parliament to legislate for Scotland.

Past action:

An issue arose in 2018 with what was then the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.  The Bill, was adopted by the Scottish Parliament in March 2018 but was challenged in the Supreme Court on the basis of incompatibility with the UK Parliaments' European Union (Withdrawal) Act 2018.

The Supreme Court found s17 of this Bill to be beyond the competence of the Scottish Parliament, and therefore unable to come into effect.  

The matter was discussed more fully by Edinburgh University's Centre on Constitutional Change. The Supreme Court's judgment is at [2018] UKSC 64.

In the event, Scotland brought forward a new Bill which eventually became the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Act 2021.

Other links:

Scottish Parliamentary election 6 May 2021.

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