TWO bills passed unanimously by MSPs could give Scottish courts “unparalleled” powers to strike down legislation from the UK Parliament, it has been claimed.
It came at the Supreme Court, which is hearing a challenge to the legislation agreed by Holyrood incorporating international treaties into Scots law.
The Scottish Parliament in March passed the United Nations Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill, which would require public authorities to respect children and young people’s rights.
It would also allow children, young people and their representatives go to the courts to enforce their rights, and let courts strike down legislation that is incompatible with the UNCRC.
“The UNCRC Bill is concerned with furthering children’s rights in Scotland. The true purpose of placing the duty on public authorities is to protect children’s rights and to further the fulfilment of those rights in Scotland,” said James Mure QC (below), representing the Lord Advocate for Scotland.
READ MORE: What Scottish bills are the Tories challenging in the Supreme Court and why?
Scottish Secretary, Alister Jack, previously raised concerns that the legislation could potentially put legal duties on to UK ministers, which would be outside the scope of the Scottish Government’s power, and referred it to the Supreme Court for guidance.
The European Charter of Local Self-Government (Incorporation) (Scotland) Bill, which MSPs also passed unanimously, was referred over similar concerns.
Sir James Eadie QC, for the Attorney General and the Advocate General for Scotland, told the court the case concerned “whether the Scottish Parliament has the legislative competence to subject acts of the UK Parliament with the need to comply with the UNCRC and to assign or delegate to the Scottish courts powers to strike down, rewrite or declare incompatible provisions of the acts of the sovereign UK Parliament”.
The UK Government has said their concerns “are not about the substance of the legislation” but whether the Scottish Parliament has the legal ability to pass the bills. In written arguments, Eadie said: “Both bills, in slightly different ways, purport to bestow upon the Scottish courts extensive and, in part, unparalleled powers to interpret and to scrutinise the legality of primary legislation passed by the sovereign UK Parliament at Westminster.”
He said there were issues with sections of both bills, adding that parts of the UNCRC Bill may “adversely” affect Parliament’s ability to legislate for Scotland.
“The Scottish Parliament is purporting to require Acts of the sovereign Parliament to meet a test to which Parliament has not assented and which may indeed conflict with a purpose Parliament is seeking to achieve,” he said.
The Supreme Court heard the UK ratified both UN treaties in the 1990s, but neither of the bills can become law in Scotland until after the outcome of the legal challenge.
In written arguments, Mure said none of the provisions modified the law on the relationship between the powers of Westminster and Holyrood “on a proper reading”. He also argued that if the application of part of one of the bills would be beyond the scope of the Scottish Parliament, it would be read narrowly to keep it within its legislative powers due to other existing restrictions on Holyrood.
READ MORE: Scotland 'stands out' on children's rights - while UK ranks 169 out of 182 countries
“The UK Law Officers do not challenge the competence of the Scottish Parliament to incorporate these treaties into Scots law,” said Mure.
“The only question for this court is whether, in effecting that incorporation, the bills or either of them infringe the limits on the Scottish Parliament’s legislative competence.”
He later argued that it was not necessary to “copy out” all of the limits on Holyrood’s power into every bill.
The Welsh Government is also involved in the case and will make oral submissions tomorrow, when the case, which is being heard by five Supreme Court justices, is expected to end. Judgement will be made at a later date.
The SNP said the legal challenge laid bare the Tories’ power grab from Scotland.
MSP Neil Gray warned: “Not only are they threatening the powers of Holyrood but also the rights of Scotland’s children. Scotland’s Parliament has been under sustained attack from the Tories who have been using Brexit, which people in Scotland overwhelmingly rejected, to tighten Westminster control.
“Now they are threatening to strike down legislation that was passed unanimously at Holyrood.”
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