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Laws passed by the Scottish Parliament struck down by Supreme Court justices

Supreme Court justices have struck down two laws passed by the Scottish Parliament after referrals were made by the Attorney General and the Advocate General for Scotland about their validity under devolution legislation.

One concerned the adoption of the European Charter of Local Self-Government and the other the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

Under section 33 of the Scotland Act 1998 the law officers may refer to the Supreme Court whether any provision of a Bill passed by the Scottish Parliament is within its legislative competence.

Although the Bill was designed to give effect in Scots law to a treaty to which the UK is a signatory - and the Scottish Parliament's intentions were not disputed - the manner in which the bill was passed breached the limitations imposed on its legislative competence.

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The Supreme Court unanimously decided the Bill should return to the Scottish Parliament for further consideration.

Justices decided three provisions of the Bill would modify section 28(7) of the Scotland Act and so were beyond the Scottish Parliament’s powers.

Section 19(2)(a)(ii) of the Bill provides that, "[s]o far as it is possible to do so", an Act of the UK Parliament "must be read and given effect in a way which is compatible with" the UNCRC.

This would require the courts, in certain circumstances, to give statutory provisions a meaning and effect which conflicts with that intended by the UK Parliament, the Supreme Court said.

A second provision would enable the courts to strike down and invalidate provisions of acts of the UK Parliament which were incompatible with the UNCRC, provided these were enacted before section 20 of the UNCRC Bill came into force.

“Making the continuation in force of acts of the UK Parliament conditional on the courts’ decision that they are compliant with the UNCRC would therefore affect the power of the UK Parliament to make laws for Scotland,” the Supreme Court said.

It for similar reasons also rejected the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, where it said two provisions would modify section 28(7) of the Scotland Act and confer on the courts the power to declare that an Act of the UK Parliament is incompatible with the charter.

Mark Smulian

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