Craig Dalzell – 7th October 2021
The Limits of Rights
The Supreme Court has this week handed down judgement against two bills that were passed by the previous Scottish Parliament and has found that key aspects of both lie outwith the competence of Holyrood. They will now be referred back to Holyrood for amendment.
The first bill was Andy Wightman’s attempt to embed the European Charter of Local Self-Government (ECLSG) into Scots Law. This charter would have laid down fundamental rights of local government including the right of local governments to exist, have their own structures and to have their own funding. The second was the Scottish Government’s attempts to right the United Nations Convention on the Rights of the Child (UNCRC) which protects children in multiple ways including their right to be people with their own identity, opinions and freedom of expression and not merely as wards of their parent(s)/guardian(s).
In both of these cases, these are treaties that the UK has itself signed up to so this isn’t quite the same as pushing directly against the UK’s stated intention (as would perhaps be the case if the devolved Scottish Parliament stated its intention to write the Treaty on the Prohibition of Nuclear Weapons into Scots Law) but they have still be struck down due to a fundamental limit of devolution.
The bills as written would have not only prohibited the Scottish Parliament from breaching the rights of local governments or the human rights of children but would have prevented the UK Parliament from doing so as well. This was found to be contrary to the Scotland Act which lays out the structure of devolution and explicitly protects UK Parliamentary Sovereignty. The UK Government reserves the right to change the structure of devolution, grant powers to or take them back from devolved Parliaments, override devolved Parliament decisions or simply bypass Holyrood altogether.
We should be concerned about this judgement especially in its timing given that this week we heard from Dominic Raab about wanting to tear up the Human Rights Act (a long-standing shibboleth of the Tories which is less about removing specific rights and more about allowing them to make such rights conditional on your behaviour and easily removable when you become a nuisance to the State) and Boris Johnson’s plan to bypass both Holyrood and local councils to fund projects in Scotland as part of his “levelling up agenda”.
But we shouldn’t be surprised by it. Westminster has always hung this sword over devolution. I disagree with John Swinney’s reaction that this shows the weakness of devolution. In fact, it shows the hard limits under which Scotland is permitted to govern its internal affairs. Even with the “strengthening” of the Sewell Convention (which says that Westminster should seek permission from devolved governments before passing legislation affecting devolved areas) in the wake of the last independence referendum, it remains merely a convention (hence why it didn’t affect this judgement) and Westminster’s promise to “not normally” act over the heads of Holyrood in devolved affairs can be easily interpreted to mean that “not normal” times are merely those times when Westminster wishes to override Holyrood.
The ruling does not mean that the bills are dead and buried. Both bills will now likely be amended to make it clear that they only compel the Scottish Parliament and Scottish Local Authorities to act within the rights laid down by these treaties. Any attempts by the UK Government to breach them will have to be dealt with by the Higher Power that is the UK Parliament.
Beyond the delay in getting this legislation passed though, there is a serious question about how the Scottish Government acts when promoting legislation that pushes at the edges of devolution and how it submits itself to the scrutiny and accountability of Parliament. I’m not saying that the edges of devolution should not be pushed. They absolutely should. When doing so results in wins, those wins could lead to significant powers being opened to the Parliament for use. Even when, as was the case this week, judgements go against the Scottish Government, they can act to clarify the UK’s infamously messy constitution in useful ways.
But this must be strategy with a purpose and I don’t see much of that happening in this case. It looks more like the bills were poorly drafted and that advice that they contravened clear limits of devolution were ignored. There have long been calls for the Scottish Parliament to be reformed to improve internal scrutiny and even the Scottish Citizens’ Assembly agreed with this by overwhelmingly voting to support the creation of a “House of Citizens” to do this job. The Government said kind words about the Assembly’s final report when it was published, but we have yet to see this recommendation be taken up by them.
Whether or not the Scottish Government and Parliament takes this judgement as a lesson to reflect on its own internal scrutiny processes as suggested above, there will remain the problem of the hard limits of devolution in Scotland. The UK is not a Federation where State and Local governments have codified and enshrined rights that can never be infringed by the governments above them, nor is it a confederation with the National government actively subordinate to state and local government (which would have allowed Holyrood to bind Westminster’s actions in Scotland with this legislation). The UK remains a unitary state where Westminster is Sovereign and can act with impunity – especially when it enjoys a majority government and suffers its own severe lack of accountability and scrutiny. Devolution has not been broken by this week’s judgement. It is working precisely as intended. Power devolved remains, as it always has been, power retained.