Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court. On its face, this case (also known as the Incorporate References case) concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significantly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from the author, Thomas Webb.
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Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also referred to as the Incorporation References Case)
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Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also known as the Incorporation References Case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also known as the Incorporation References Case). On its face, this case concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significnatly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from author, Thomas Webb.
Chapter
10. Devolution in Scotland
Aileen McHarg
Scotland’s devolved Parliament and Government were established in 1999 under the Scotland Act 1998. The current devolved arrangements build upon earlier institutional arrangements for the distinctive governance of Scotland, elements of which date back to the Union of 1707. By creating both a distinct legislature and separate institutions of political representation for Scotland, the 1999 reforms were nevertheless of profound constitutional significance. This chapter traces the development of devolved government in Scotland, arguing that the history of Scottish devolution is best understood as a response to nationalist sentiment: the assertion of the right of the people of Scotland to self-governance and self-determination. The historical trajectory has been one of increasing autonomy and constitutional recognition, and this pattern has continued since 1999 (culminating in an—unsuccessful—referendum in 2014 on the question whether Scotland should become wholly independent of the United Kingdom). However, despite the extensive powers enjoyed by, and the political importance of, the Scottish Parliament and Government, the status of devolution within the United Kingdom constitution is ambiguous and contested. The chapter also explores the constitutional status of devolution across two dimensions: the juridical—i.e. how the powers of the Scottish Parliament and Government are understood and interpreted by the courts; and the political—how the devolved Scottish institutions relate to their counterparts at UK level. The chapter ends by exploring how the tensions between Scotland’s powerful political claims for constitutional recognition, yet weak legal protection, have played out in relation to Brexit, and may play out in future in a Scottish political context still dominated by the independence question.
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The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court (also known as Continuity Bill Reference)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court. This case is concerned with the competencies of the Scottish Parliament, and the nature of devolution in the UK more generally. The document also includes supporting commentary and questions from author Thomas Webb.
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The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court (also known as Continuity Bill Reference)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court. This case is concerned with the competencies of the Scottish Parliament, and the nature of devolution in the UK more generally. The document also includes supporting commentary and questions from author Thomas Webb.
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2. Parliamentary Sovereignty in a Changing Constitutional Landscape
Mark Elliott
Parliamentary sovereignty is often presented as the central principle of the United Kingdom’s constitution. In this sense, it might be thought to be a constant: a fixed point onto which we can lock, even when the constitution is otherwise in a state of flux. That the constitution presently is—and has for some time been— in a state of flux is hard to dispute. Over the last half-century or so, a number of highly significant developments have occurred, including the UK’s joining— and now leaving—the European Union; the enactment of the Human Rights Act 1998; the devolution of legislative and administrative authority to new institutions in Belfast, Cardiff and Edinburgh; and the increasing prominence accorded by the courts to the common law as a repository of fundamental constitutional rights and values. Each of these developments raises important questions about the doctrine of parliamentary sovereignty. The question might be thought of in terms of the doctrine’s capacity to withstand, or accommodate, developments that may, at least at first glance, appear to be in tension with it. Such an analysis seems to follow naturally if we are wedded to an orthodox, and perhaps simplistic, account of parliamentary sovereignty, according to which the concept is understood in unyielding and absolutist terms: as something that is brittle, and which must either stand or fall in the face of changing circumstances. Viewed from a different angle, however, the developments of recent years and decades might be perceived as an opportunity to think about parliamentary sovereignty in a different, and arguably more useful, way—by considering how the implications of this still-central concept are being shaped by the changing nature of the constitutional landscape within which it sits. That is the task with which this chapter is concerned.
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12. The Governance of Scotland and Wales
This chapter examines how the constitution has addressed the question of the geographical separation of government power in the United Kingdom of England, Scotland, and Wales, and discusses the Scotland Act 1998 and the Government of Wales Acts of 1998 and 2006. It argues that although the Scotland Act 1998 and Government of Wales Act 2006 fall short of creating a ‘federal’ UK constitution similar to how the notion is understood in the United States, the constitutional significance of the devolution legislation should not be underestimated. The chapter also discusses the conduct and outcome of the 2014 independence referendum in Scotland. Consideration is given to the leading Supreme Court judgments on the nature and extent of the Scots Parliament’s legislative powers, and to the contents and implications of the Scotland Act 2016.
