THE Scottish Government’s top law officer was accused of advancing a “completely meaningless” argument to the UK’s highest court by its most senior judge.
Supreme Court president Lord Reed also told counsel for the Lord Advocate that the way two recent Holyrood bills had been drafted would “guarantee” legal uncertainty.
Lord Reed said the approach would effectively “leave it to the courts to sort out the problems on a case-by-case basis”, instead of the legislation being clear on its face about its limits.
The exchanges came in the second half of a two-day hearing before five Supreme Court justices on whether the Bills go beyond’s Holyrood’s powers.
The Bills, one incorporating the UN Convention on the Rights of the Child (UNCRC) into Scots law, and one incorporating a European charter on local government, were passed unanimously by MSPs in March.
After previously warning SNP ministers that parts of the the Bills exceeded Holyrood’s legislative competence, the UK Government referred them to the Supreme Court, which can either uphold them or send them back to Holyrood for amending.
The UNCRC Bill would require public authorities to respect children and young people’s rights and let them enforce those rights through the courts, which could strike down laws or declare them UNCRC incompatible.
James Mure QC, for the Lord Advocate, rejected the UK Government claim that the Bills diminish the ability of the UK Parliament to legislate for Scotland and so are in breach of Section 28(7) of the 1998 Scotland Act.
He said: “That ability remains. In my submission, nothing has taken away power to make laws for Scotland. The existence of the UNCRC requirement in the current bill is not therefore in conflict with the unqualified power of Parliament to make laws that have legal effect in Scotland. It’s capacity, authority, and ability is unqualified.”
He said the key point was that Section 28(7) protected Westminster’s “continuing power” to make laws for Scotland, not the statute book.
However he admitted that it would require litigation in the courts, after the Bills became law, to determine their precise legislative extent, perhaps “a whole series of cases”.
He said he accepted legal certainty would only “become clearer over time”, adding: “But it’s not irredeemably unclear for the purpose of an Act of the Scottish Parliament in my submission.”
Lord Reed added: “In most liberal democracies one expects the law of the land to be publicly available and accessible.
“Whereas this technique of drafting guarantees that the word thing you can be sure of is that the terms of the statute do not represent the law.”
Mr Mure said: “Clearly that’s not the intention of the draughtsmen in any Bill.”
Lord Reed corrected him: “You just told us, as a matter of policy, that is the drafting technique adopted. You draft the legislation as if the constraints in the Scotland Act didn’t exist, and then you leave it to the courts to sort out the problems on a case-by-case basis.”
Mr Mure said the desire of the Scottish Parliament was to ensure the reach of the incorporated rights should be “as broad as possible within the legislative competence of the parliament”.
He said: “That means, of course, that it can be impossible, in abstract, in advance to identify the points at which those incorporated rights may bite.
“It would be a mistake to oblige edevolved legislatures such as the Scottish Parliament to spell out every instance in which that margin or border is reached.”
Lord Sales said that approach “doesn’t seem to fit well” with the Scotland Act’s aim of ensuring laws are always within the Scottish Parliament’s competence through a “pre-clearance model” rather than a “post-legislation working-out in the courts model”.
After Mr Mure said the presiding officer and ministers had certified the Bills as within competence, Lord Reed told him: “But that’s completely meaningless on your approach.
“Any Bill, on your approach, is within competence because it has to be read against the background of the limitations in the Scotland Act… you’re free at one bound from those restraints, and [the UK Government’s counsel] is wasting his time bringing a challenge because it’s inconceivable there could be legislation which would be outside competence, because it’s always been understood as being subject to the restraints on competence.”
Mr Mure said that didn’t reflect the reality of the situation. Lord Reed replied: “Well that’s the argument you’re presenting to the court. The special thing about the Scottish Parliament is that there are provisions built into the legislation establishing it that require pre-legislative scrutiny of the measures that it adopts.”
The Scotland Act expressly allowed Bills to be challenged over their competence and it was “meaningless” to treat Bills as if they were automatically within competence.
Questioned earlier by Lord Reed, Mr Mure was also forced to accept the UNCRC Bill was inconsistent in places.
In particular, that it said a court could declare future legisation incompatible with the UNCRC in way that was “not binding”, yet also said a public body could be sued for damages if it enforced a law that was incompatible with the UNCRC, thereby having a concrete effect.
Lord Reed said: “The condition for an award of damages is simply that there has been an act by a public authority that is unlawful under Section 6 [of the Bill]. That’s that, isn’t it?
“Regardless of what declarations may be made under Section 20 and 21?”
Lord Reed said it was a “rather strange provision” and he didn’t understand it
Lord Sales said he suffered “similar puzzlement”, pointing out that even if a declaration of UNCRC incompatibility under Section 21 was “non binding”, a finding of the same thing under Section 6 of the same Bill would in effect be binding, as ignoring it would be unlawful.
Mr Mure said he accepted that Lord Sales was correct.
Lord Sales said he was not sure what Sections 20 and 21 achieved for the parties involved.
Lord Reed said: “On the face of things Section 21(4) looks as though it’s inconsistent with Section 6. We’re told that a declarator doesn’t affect the continuing enforcement of the legislation, but any public authority that does enforce it is going to be sued under Section 7 and 8 and have an award of damages made against it, so plainly it does affect the enforcement. This is splitting hares. It’s saying that the declarator as a remedy doesn’t affect continuing enforcement, but plainly Section 6, 7 and 8 dop affect continuing enforcement.”
Mr Mure said: “Yes, I accept that.”
Later, Helen Mountfield QC, for the General Counsel of Wales, rejected the UK law officers’ case that the Bills were “illegitimately taking power from the UK Parliament” that should stay there under the terms of the Scotland Act.
She told the justices: “It’s very hard to see how that arises.
“It’s very hard to see why this is said to be usurpation of the competence or of the sovereignty of the UK Parliament to legislate however it wants.”
Ending for the UK Government, Sir James Eadie QC said the UNCRC Bill would see Holyrood “offloading” difficult and complex decisions about the limits of its own competence to the courts, rather than properly make its own specific and democratic decisions.
He said it would confer powers on Scotland’s courts to strike down or declare incompatible with the UNCRC past or future Westminster laws, and so Westminster’s ability to legislate for Scotland would be “materially qualified” where it was not previously.
He also said parts of the the Bill were “incoherent and ill-thought out”, and a mechanism for courts to interpret its limits was “not a salve for all drafting ills”, arguing legislation ought to be clearly understood at the outset to avoid disputes further down the road.
He also said Mr Mure had failed to knock down the UK Government’s arguments against the Bills or made convincing arguments of his own.
Lord Reed said the court would deliver its ruling “as soon as we can”.