It's time to set aside feigned outrage and polarised debate for the sake of devolution

With tensions between the UK and the Scottish Governments ever-increasing, there must be an easier path to solving some of the legislative differences.

Last week saw publication, under Freedom of Information law, of some of the issues under discussion between the two governments to resolve the impasse over the European Charter of Local Self-Government Bill (ECLSG Bill) and the UN Convention on the Rights of the Child (Incorporation) Bill (UNCRC Bill), both of which, in October 2021, were declared by the Supreme Court to be outwith the legislative competence of the Scottish Parliament.

These two bills are just the latest to be declared unlawful by the Supreme Court and have contributed to escalating tensions between Holyrood and Westminster. Since then, whether it be over the section 35 order in response to the Gender Recognition Reform Bill or the refusal to grant an Internal Market Act exemption for the deposit return scheme, MSPs and ministers have been ramping up the rhetoric of outrage and betrayal directed both at UK ministers and the Supreme Court. The first minister has even claimed that devolution is becoming “unworkable”.

Looking at the situation objectively, setting aside the feigned outrage and the polarised debate, there are problems with the devolution settlement that require constructive engagement and reform. In addition, there is a problem with how the Supreme Court has been interpreting the Scotland Act. In a number of decisions, it has made clear that the founding statute of the Scottish Parliament is to be read as narrowly as any other statute.

Both the UNCRC Bill and the ECLSG Bill (declaring an interest on the latter, as it was my members’ bill) are now stuck in a legal logjam following the  Supreme Court ruling. Both incorporate international treaties into domestic law. By doing so they give direct legal effect in Scotland to their various provisions which are designed to strengthen the rights of children and of local government. 

They do so by providing a legal remedy to any party who feels that any public authority or legislation is incompatible with the provisions of the treaties. The remedies allow the Scottish courts to strike down incompatible legislation (in the UNCRC Bill) or issuing a declaration of incompatibility (in the case of the ECLSG Bill). So, for example, if parliament were to pass a law abolishing local government then local authorities could seek to have this overturned in the courts on the basis that it breached the European Charter. Without incorporation, this would be impossible. Importantly, both bills provide that such legal challenges could be brought against all legislation in devolved areas, whether the law was an Act of the Scottish Parliament or of the UK Parliament.

By way of context, it is important to understand that most of the statute book in the devolved space is still (and will for some time continue to be) UK law passed by the UK Parliament between 1707 and 1999. The Education (Scotland) Act 1980 and the Local Government (Scotland) Act 1973 are just two examples of legislation which cover devolved matters.

The remainder of our laws in the devolved space are provided by the almost 350 bills enacted by the Scottish Parliament since 1999 and the few dozen Acts of the pre-1707 Scots Parliament that remain in force (such as the Leases Act 1449 and the Royal Mines Act 1424).

The Supreme Court ruled that the legal remedies in both bills could not be applied to UK legislation as that would affect the right of the UK Parliament to legislate in devolved matters, a right enshrined in the Scotland Act.

This leads to the bizarre situation where the Scottish Parliament could, if it so wished, repeal the 1980 Education Act completely but cannot give the courts the power to strike down any part of it where it is incompatible with the UNCRC.

The straightforward resolution to this is to amend both bills to make the legal remedies available only to Acts of the Scottish Parliament. However, this leaves any complaints about incompatibility subject to the rather random question of whether the incompatibility relates to a Scottish Act or UK Act (where both concern devolved matters).

As I understand it, Scottish ministers intend to do just this. Yet there is an elegant alternative that overcomes the problem which has not yet been properly considered. 
Rather that the devolved statute book being a mix of UK and Scottish laws, the Scottish Parliament could identify all the UK laws likely to be engaged in matters concerning the rights of children and local government.

It could then pass consolidating legislation incorporating all UK legislation in education and local government into a Scottish Bill and repeal the equivalent UK laws. This would ensure that the Scottish courts have the full powers set out in the UNCRC and ECLSG Bills as passed by the Scottish Parliament.

Some of the tensions between Holyrood and Westminster do require a sober and reasoned review of how the Scotland Act is operating and being interpreted by the courts. That’s an important job for any incoming Labour government. But some of the tensions can also be overcome by imaginative measures such as I have outlined. I await developments with interest.