From Alasdair Galloway:

The main site of dispute in this week’s judgement, is Section 28(7) of the Scotland Act, which deals with Holyrood’s powers to pass legislation. For completeness I will include it all

“28 Acts of the Scottish Parliament.

(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.

(2) Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.

(3) A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty’s own hand signifying Her Assent are recorded in the Register of the Great Seal.

(4) The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.

(5) The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.

(6) Every Act of the Scottish Parliament shall be judicially noticed.

(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

So, what is the problem? It is well summed up in Paragraph 49 of this week’s judgement:

“49. As has been explained, section 21 of the Bill, like section 20, is modelled on section 4 of the Human Rights Act. Where legislation cannot be interpreted compatibly with the UNCRC requirements, even with recourse to section 19 of the Bill, section 21 would confer on the courts the power to issue a declarator that the legislation is incompatible with the UNCRC requirements. By virtue of subsection (5)(b)(ii), that power expressly applies to Acts of Parliament which receive Royal Assent after section 21 comes into force. Section 21 would therefore confer on the courts the power to pass judgment on the compatibility of Acts of Parliament with provisions of an international treaty to which the Scottish Parliament, but not Parliament itself, has chosen to give domestic effect”

I have highlighted the key part – that the problem is that while the Scottish Parliament might have taken the two international standards into Scottish law, the Westminster Parliament has not. It is, therefore important for more than that Holyrood proposed to act in a way inconsistent with extant Westminster Legislation. The issue was that these Bills could be inconsistent with Westminster Legislation that might be passed in the future. In short nothing must get in the way of legislation from Westminster! Yet, and yet, local government and children’s’ rights are devolved. Surely on devolved matters, Holyrood would be the principal legislator?

Well ………. Not necessarily and most importantly, it’s not like we weren’t told. Here’s a report in the Irish Times (there are loads but this came up first on Google) in April 1997:

“THE Labour leader, Mr Tony Blair, was forced on the defensive for the first time during this election campaign after he suggested his party’s long-promised parliament for Scotland would have no more powers than an English parish council because sovereignty would remain “with me” at Westminster.”

Sovereignty can appear a dry and even boring subject, but it has highly significant implications for the future independence struggle. This is how Westminster itself speaks of it:

“Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.”

To take one example, I nearly died laughing listening to Mundell telling us, when the last Scotland Act was going through the Commons, that it would enshrine the Scottish Parliament in law. Well, the first sentence of the above kicks that into the longest of long grass, doesn’t it? But how many bought it at the time?

The quote that “power devolved is power retained” was attributed to Enoch Powell and several recent Supreme Court decisions set out clearly how this works – Westminster cannot be contradicted or denied.

So, 28(7) was always there. It’s not some devilish invention of the Johnson Gang. It has been there all this time. Indeed, we didn’t even have to go to the Scotland Act to know this, as the sovereignty of Parliament is one of the oldest precepts of the UK’s system of politics. It can for instance be taken as far back as the Bill of Rights (1689) of which the Earl of Shaftsbury said “The Parliament of England is that supreme and absolute power, which gives life and motion to the English government”.

Of course, there is the small complication that this precedes the Treaty of Union. However, in their legal advice to the Westminster Government on the International Law implications of Scottish independence, Professors Crawford and Boyle suggest (paragraph 37), “Whether or not England was also extinguished by the union, Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.”

On the other hand, albeit in an “obiter dicta” (a sort of legal ‘by the way’) Lord Cooper (then Lord President) said in the case of McCormick v the Lord Advocate “the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law”, and of course indeed it does not. However, when it is not Scotland but the UK it seems clear that the English tradition will hold.

For instance, in the same paper Crawford and Boyle write “in 1999 the UK Government suggested to the Committee for Privileges that the UK Parliament had ‘complete sovereignty’ to amend even those articles of the Acts of Union that ‘are expressed to be entrenched for all time (such as the creation of the United Kingdom, the succession of the Monarchy, the Scottish Courts and the Church of Scotland)’ (paragraph 46)

The cases brought at the Supreme Court by Gina Miller, the Continuity Bill case, and now these two Holyrood Bills all serve to confirm that the English tradition of the complete sovereignty of the House of Commons stands astride UK law like a colossus, and so “can create or end any law” as they did with the Continuity Bill. When this was passed Holyrood had the power under the Scotland Act to pass this legislation, but that power was removed by Westminster’s EU (Withdrawal) Act. 

As Lord Reed, Deputy President of the Supreme Court, observed in a recent speech given in Dover House: “the consequence is that it is legally possible for the UK Government to react to the passage of a Bill in the Scottish Parliament by making a reference and then persuading the UK Parliament to amend the Scotland Act so as to render the Bill invalid.”

In fact, it’s even worse than that, since Jack made clear in his letter to Swinney, his concern was not simply legislation in place, but also legislation in the future. He writes in his letter of March 21 2021 he cannot “seek to make provision that constrains the UK Parliament’s ability to make laws for Scotland.” His stated justification for this is clarity for citizens about “the competence and roles of Scotland’s two parliaments and governments”. Well, I think we know now who is leading the band, and it’s not us! Even on devolved matters.