The UK Government’s most senior lawyers are due to start a Supreme Court challenge over two Bills unanimously passed by the Scottish Parliament.
In March, Holyrood unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which would incorporate a UN treaty into Scottish law.
Scottish Secretary Alister Jack raised concerns the legislation could potentially put legal duties on UK Ministers, which would be outside the remit of the Scottish Government’s power.
Before the passage of the Bill, Jack wrote to Deputy First Minister John Swinney asking for changes to ensure it did not apply to legislation passed by the UK Government or UK ministers.
However, after the legislation was not amended, Jack said the issue would be referred to the Supreme Court.
The legal bid, starting on Monday and brought by the Attorney General and the Advocate General for Scotland, will evaluate whether certain parts of the Bills are outside of the power of the Scottish legislature.
The European Charter of Local Self-Government (Incorporation) (Scotland) Bill, which was also passed unanimously by MSPs, was also referred over similar concerns.
The UK’s highest court will now consider the Bills, which incorporate international treaties that the UK is a signatory into Scottish law.
Over two days, the Supreme Court will also consider whether the Bills would allow the Scottish courts extensive powers to scrutinise legislation passed by the UK Parliament.
Scotland’s Lord Advocate, the position newly held by Dorothy Bain QC, and Wales’ Counsel General are responding to the legal action.
First Minister Nicola Sturgeon previously called the move “morally repugnant” as the SNP accused the UK government of trying to strike down a law to protect the rights of children.
However, Jack has repeatedly stated the issue with the legislation is purely based on the possible overreach of the Scottish Parliament, not the contents of either of the Bills.
A UK Government spokesperson said: “UK Government law officers have referred two Bills from the Scottish Parliament to the Supreme Court under Section 33 of the Scotland Act 1998.
“The UK Government law officers’ concerns are not about the substance of the legislation, rather whether parts are outwith the legislative competence of the Scottish Parliament.
“We will be setting out our case in full at the hearing.”
The case will be heard by five Supreme Court justices and is expected to end on Tuesday, with judgment reserved until a later date.
