“UNQUALIFIED legislative power” is your phrase for today. It helps to explain what happened in the Supreme Court this morning.
Section 28 of the Scotland Act says a few different things. It says Holyrood can “make laws.” It says the UK Parliament “will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. And critically, it says that the Scotland Act “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”
Experience has taught us that only some of these clauses mean anything. Since Brexit, Westminster has routinely ignored devolved administrations and run roughshod over devolved responsibilities. In the new “normal”, UK governments have stopped even pretending to be embarrassed when they use their Commons majority and parliamentary sovereignty to ram changes to the devolution settlement through, whatever politicians in Edinburgh, Cardiff and Belfast might say.
But the Supreme Court gave resounding effect to the last of these three provisions today, striking six clauses out of two Scottish Bills. Why? Because they interfered with the “unqualified legislative power” of the Westminster Parliament to make laws for Scotland. Today’s Supreme Court judgment is a stark reminder that as far as the British constitution is concerned, power devolved is always power retained.
READ MORE: Scottish children's rights bill goes beyond Holyrood competence, court rules
Today’s judgment tells you some important things about how this Supreme Court imagines its functions and imagines its place in the constitution. Devolved powers are to be tightly policed while giving the grandest effect possible to the central and ultimately destructive fantasy of the British constitution that Westminster is the only parliament that matters, and everything else – the Human Rights Act, devolution – are alien outgrowths and minor developments which requires careful trimming to keep the central myth of the British constitution intact.
So what was the Scottish Parliament trying to achieve with the Children’s Rights Bill, and how did the legislation affect Westminster anyway? At its most basic, the bill aimed to incorporate the UN Convention on the Rights of the Child into domestic law. Instead of being a dead letter in Scottish courts, the Bill would have allowed litigants directly to enforce children’s rights, challenging legislation they believed violated their rights, and giving courts tools to knock down those laws.
Taking inspiration from the Human Rights Act 1998, the legislation aimed to create a coherent and reasonably simple framework, subjecting all legislation on devolved matters to consistent scrutiny by the courts, whether or not the laws had been passed by Holyrood or by Westminster. Many people don’t realise this, but Holyrood amends and repeals Acts of the Westminster parliament all the time – but even after 20 years of devolution, great parts of the law dealing with devolved issues derives from legislation passed by Westminster.
At its most stark, Lord Reed’s logic means any new Westminster legislation which arguably violates children’s rights cannot be challenged in court, even if it applies in Scotland, even if Westminster is legislating about devolved issues. But the practical effect of today’s decision is that none of these Westminster Acts will be susceptible to challenge in court.
READ MORE: Nicola Sturgeon warns of consequences of Supreme Court ruling on children's rights bill
Although there is an obvious technical fix for the bill – applying the restrictions only to Acts of the Scottish Parliament – the practical effect of this judgment is guaranteed to be an amazing level of fragmentation, effectively making children’s rights unenforceable in respect of great parts of the Scottish statute book, frustrating the basic goal of the bill in fundamental ways.
This decision is a victory for the idea that Westminster must have “unqualified legislative power” to make laws for Scotland. It is a loss for anyone who believes the UK constitution should have the capacity to evolve into any kind of stable federal compromise. And for supporters of independence? It is more evidence, as if it was needed, about the dysfunctional way the British state continues to operate.
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