Andrew Stevenson: Constitutional challenge on UN Rights of the Child bill could lead to further litigation
Further legislation incorporating international conventions into Scots law could also face legal challenges, warns Andrew Stevenson.
It is vital to ensure prudent management of taxpayers’ money that authorities act within their powers (intra vires). Had they done so, numerous UK local authorities, including Labour-dominated Glasgow District Council, would not have entered interest rate swap contracts with merchant banks, leading to a morass of litigation in the 1990s at massive expense.
Given the huge financial powers they wield, the need to avoid authorities acting ultra vires applies even more to a devolved Parliament than to local government.
Where there is a concern that the Scottish Parliament has acted beyond its authority, public officers have the right and indeed duty to seek a determination from the Supreme Court. This important check on the power of the Scottish Parliament, akin to judicial review, is provided by section 33 of the Scotland Act 1998. A mechanism for review is especially vital when the Parliament is unicameral and dominated by MSPs who desire no restrictions of their powers. The court, politically neutral, highly respected and boasting the finest legal minds, has no axe to grind.
So it is worrying when a challenge is met with the indignation unleashed when a referral was made in relation to the terms of the United Nations Convention of the Rights of the Child (Incorporation) (Scotland) Bill. The First Minister called it “morally repugnant” that “the UK Tory government is going to court”.
The referral is understandable, and stems from ambiguous drafting. Only a cynic would say it was a deliberate attempt to provoke a constitutional confrontation. The Bill, introduced in September 2020, is commendable in providing at section 6 that it is unlawful for a public authority to act in a way incompatible with the UN Convention regulations.
However, the Secretary of State for Scotland raised concerns that specific sections of the Bill could impose obligations on UK Government Ministers in reserved areas and restrict the UK Parliaments’ rights to make laws for Scotland. If it does this, the Bill is ultra vires of the Scottish Parliament because, as a creation of a UK statute, it is not allowed to legislate on reserved matters, including fettering the ability of Westminster to act in a way that is (or could be argued to be) not compatible with the Convention.
Had it wished to choose a battlefield on which to confront the UK Government, the Scottish Government would have been shrewd in choosing this one. Who would be so cold and heartless to defend the UK Parliament’s right to infringe a UN Convention which protects children? To be fair to the SNP, the Bill was passed by all MSPs, including Tory members.
If the Bill is intra vires, the Scottish Government has nothing to worry about. For all we know, it may yet be that the Supreme Court will rule in its favour. This is despite not having done so recently when, in 2018 the government introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.
Section 17 would have given Scottish Ministers the power to veto subordinate legislation made by UK Ministers on matters of retained EU law. The Attorney General and Advocate General for Scotland obtained a reference to the Supreme Court. That court, which included two Scottish judges, ruled section 17 was indeed outwith the Scottish Parliament’s legislative competence.
The Scottish Parliament should not be spending taxpayers’ money trying to pass incompetent laws. It can act only within its remit, like everyone else. This includes the Prime Minister. His unlawful attempt to prorogate the UK Parliament in 2019 was thwarted by the Court of Session, [English] High Court and by the Supreme Court, which held that “the effect on the foundations of our democracy was extreme”. His actions were also a colossal waste of time and resources in litigation. There was, for example, a hearing lasting three days before all 11 Justices.
It is now reported that the Scottish Parliament is considering incorporating other international conventions into Scots law. These might concern discrimination on the basis of race or disability. However, unless they are unambiguously drafted and kept intra vires, one can foresee litigation similar to that arising from the UN Rights of the Child Bill, entailing further wasted expenditure of taxpayers’ money.
- Andrew Stevenson is secretary of the Scottish Law Agents Society (SLAS). This article first appeared in The Scotsman.