SNP Supreme Court defeat judgement ‘highly unconvincing’
Two legal experts have described the Supreme Court’s decision to rule a key human rights bill as being beyond the powers of Holyrood as “highly unconvincing”.
The comments come in a blog for the UK Constitutional Law Association, written by professor of public law Mark Elliot, and Nicholas Kilford, a PHD candidate, both at Cambridge University.
It comes after the Supreme Court ruled that the bill seeking to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into Scots law went beyond the legislative competence of the Scottish Parliament.
The UNCRC bill was passed unanimously by MSPS in March and would have seen the incorporation of the UNCRC into Scots law.
The bill would have made it unlawful for public authorities and any children’s service
provider to act incompatibly with the UNCRC and gave the Children’s Commissioner the right to take legal action in relation to children’s rights.
However, the Supreme Court ruled that the bill had the effect of qualifying the power of Westminster to make laws for Scotland by modifying a section of Scotland Act. In the long and technical assessment of the decision from the court, Professor Elliot and Mr Kilford write that the decision has profound consequences for the understanding of the constitutional arrangements for Scotland.
They write: “The UNCRC Bill judgment is doubtless one of the most significant judgments that the Supreme Court has rendered in relation to devolution.
"The Court’s broad reading of section 28(7) confirms that devolved legislatures are constrained not merely by the sovereignty of the UK Parliament but by the more far-reaching, and imprecise, notion that it retains ‘unqualified’ power.
"It is paradoxical that arguably the most potent tools for restraining the Scottish Parliament are to be found in what might have otherwise been understood as fairly innocuous provisions of the very Act designed to empower it.”
Following the judgement, the deputy first minister John Swinney said the ruling meant Scotland was in a “ludicrous constitutional position”, while opposition parties criticised the SNP for playing constitutional games ”.