TWO bills passed by the Scottish Parliament earlier this year were outside the competence of Holyrood, the Supreme Court has ruled.

Judges unanimously agreed that the the UN Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill, and the European Charter of Local Self-Government (ECLSG), went beyond the limits of the Scottish Parliament’s powers.

MSPs unanimously backed the bills prior to May's Holyrood election.

They enshrined international treaties focused on children's rights and local government.

They were challenged by UK law officers, who said standards set in the legislation could place obligation on UK ministers, and therefore the decision was taken to the Supreme Court. 

In a live-streamed hearing Lord Reed told the court that the decision was unanimous. 

He said simply: "The Supreme Court unanimously decides that four provisions of the UNCRC fall outside the legislative competence of the Scottish Parliament."

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For the ECLSG, Lord Reed said that the contents of article 5 would be "incompatible" as it would  "affect the power of the UK parliament to legislate for Scotland, and therefore is outside legislative confidence of Scottish Parliament".

The article relates to the protection of local authority boundaries, and reads: "Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute."

The ruling means Westminster will be able to pass legislation in devolved areas without being challenged in court, due to the parliament's "unqualified legislative power" to make laws. 

Lord Reed set out the two questions of law that were raised from the international treaties being incorporated. 

He said: "The first is whether certain of the provisions would affect the power of Parliament to make laws for Scotland, thereby modifying section 28(7) of the Scotland Act, in breach of the limitation on the Scottish Parliament’s competence imposed by section 29(2)(c) of that Act.

"The second question is whether certain provisions which, on their face, Page 3 admittedly exceed the legislative competence of the Scottish Parliament, can be interpreted as being within its competence by means of recourse to the interpretative obligation set out in section 101(2) of the Scotland Act."

Setting out the scope of the Scotland Act which allows Holyrood a "mandate to make laws for Scotland", Lord Reed said that although the parliament has "plenary powers" within limits of its legislative competence it does "not enjoy the sovereignty of the Crown in Parliament".

The National:

A ministerial statement on the ruling will be heard in Holyrood this afternoon

The judgement also set out that an act in the Scottish Parliament "cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters".

In setting out the judgement of the UNCRC, Lord Reed said that although the Scottish Parliament passed the bill unanimously it has "no bearing on the legal questions" the court had to decide upon. 

The first question the Supreme Court discussed regarding in the UNCRC relates to whether a section of the bill, within section 19, which looks at the interpretation of the legislation, is in breach of the section of the Scotland Act which sets out a number of provisions where Holyrood cannot legislate.

The court ruled that the provisions in the Bill were "outside the legislative competence of the Scottish Parliament" because it would modify section 28(7) of the Scotland Act.

Section 28 (7) pertains to acts of the Scottish Parliament which are not allowed to "affect the power of the Parliament of the United Kingdom to make laws for Scotland".

The same question was posed over parts of section 20 in the UNCRC bill, titled "strike down declarators". 

Citing the provision, the judement reads: "If the court is satisfied that the provision is incompatible with the UNCRC requirements, it may make a declarator stating that the provision ceases to be law to the extent of the incompatibility (a ‘strike down declarator’)."

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Lord Reed set out that although these sections are modelled on the Human Rights Act, the effect is "much more drastic". 

He explained: "Put shortly, therefore, section 20 enables the courts to strike down and invalidate provisions of Acts of Parliament which are incompatible with the UNCRC requirements, provided they were enacted before section 20 comes into force."

Lord Reed then said that the Scottish Parliament could enact Section 20 at "regular intervals" to enable courts to "strike down" Acts of Parliament. 

Therefore, Westminster would be "confined" to enacting legislation in Scotland with a "limited life expectancy" unless it had court approval. 

He said: "The Scottish Parliament could, for example, re-enact section 20 every year, thereby imposing a 12 month 'sunset clause' on legislation enacted by Parliament, unless it complied with the courts’ assessment of the UNCRC requirements.

"That would plainly be a modification of Parliament’s 'unqualified legislative power'."

First Minister Nicola Sturgeon reacted to the ruling on Twitter.

She said: "Implication of today’s judgment on UN Convention on Rights of the Child in a nutshell.

"The current powers of  @ScotParl leave us unable to fully protect children’s rights, even in devolved areas. If our Parliament was independent, no such restriction would apply.

"Anyone thinking this is an abstract argument should reflect that also today, the UK government is taking £20pw from the pockets of the poorest families - making it harder for many parents to provide essentials for their children."

The conclusion of the judgement set out that four sections of the UNCRC and two sections of the ECLSG are outside the legislative competence of the Scottish Parliament because it would modify the Scotland Act.

A ministerial statement on the ruling is due after topical questions at 2pm in Holyrood.