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by Margaret Taylor
06 October 2021
Supreme Court rules Holyrood exceeded powers when passing two new laws

Supreme Court rules Holyrood exceeded powers when passing two new laws

Two bills passed by Holyrood in the final days of the last parliament have been ruled incompetent by the UK Supreme Court.

In March, MSPs voted unanimously to incorporate both the United Nations Convention on the Rights of the Child (UNCRC) and European Charter of Local Self-Government (ECLSG) into domestic Scots law.

The former sets out specific rights around ensuring children fulfil their potential, such as the right to health and education, leisure and play, fair and equal treatment, protection from exploitation and the right to be heard.

The latter, which was created by the Council of Europe in 1985 and ratified by the UK in 1997, sets out a number of principles to protect local authorities’ political, administrative and financial independence.

The UK Government referred both bills to the Supreme Court over concerns that certain provisions fall outside the scope of the Scottish Government’s devolved powers.

In a decision handed down this morning, Supreme Court president Lord Reed – whose ruling was backed by four other justices – found in favour of the UK Government.

In his ruling Lord Reed said that in their current form both the UNCRC Bill and the ECLSG Bill would make it possible for UK laws to be challenged in the courts. That would be essentially modify the Scotland Act, a piece of UK legislation the Scottish Government has no power to amend.

The Supreme Court said that both bills will now return to Holyrood so the sections covered by the ruling can “receive further consideration”.

When the bills were initially referred to the Supreme Court First Minister Nicola Sturgeon described the challenge as “jaw-dropping” as well as “politically catastrophic” and “morally repugnant”.

In a statement today, Deputy First Minister John Swinney said the Scottish Government respects the court’s ruling but added that it “lays bare the weakness of, and the limits in, the devolution settlement”. He will update parliament later today on how the government plans to proceed.

While Swinney said the judgment shows that “the devolution settlement does not give Scotland the powers it needs”, the UK Government said it “is the responsibility of both governments as lawmakers to propose legislation that is clear and unambiguous”.

Scottish Secretary Alister Jack said: "As we have been clear, our concerns were never to do with the policy of the bills, but about whether they are within the legislative competence of the Scottish Parliament.

"We will continue to work collaboratively with the Scottish Government to address any competence concerns with future Scottish Parliament legislation.” 

Read the most recent article written by Margaret Taylor - A question of choice: Finding a way forward for prostitution in Scotland

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