This article suggests that the Supreme Court’s interpretation of section 28(7) has created such problems in relation to the legislative competence of the Scottish Parliament that the provision needs to be amended, repealed or qualified.

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The terms of section 28(7) appear innocuous. Section 28(1) confers power on the Scottish Parliament to make laws to be known as Acts of the Scottish Parliament (“ASPs”), subject to section 29 which provides that an ASP is not law in so far as any provision is outside the legislative competence of the Parliament. Section 28(7) provides:

This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

Original view

Originally, the view was taken that, as Lord Sewel expressed it in the House of Lords on 21 July 1999, section 28(7):

makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters.

Hansard, HL vol 592, col 791

In other words, it was simply taken to be an expression of the sovereignty of the UK Parliament and, as such, as Lord Hope said in that debate, “it simply states the obvious” (Hansard, HL vol 592, col 796). However, as it turned out, it is the classic illustration of the draftsman’s adage that unnecessary words turn septic.

Sewel convention

It was because of the view originally taken of section 28(7) that Lord Sewel went on to say:

However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.

Hansard, HL vol 592, col 791

The Sewel convention, as it became known, was given statutory expression by section 2 of the Scotland Act 2016 as a qualification upon section 28(7) in section 28(8):

(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

However, despite its recognition in statute, it remains a political convention and is not justiciable – R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

Modification of section 28(7)

Section 28(7) does not stand on its own. By operation of section 29(2)(c) of, and paragraph 4(1) of Schedule 4 to, the Scotland Act 1998, that subsection forms one of the protected enactments which the Scottish Parliament cannot modify.

The meaning of “modify” was considered by the Supreme Court, in the Continuity Bill Reference [2018] UKSC 64. They stated:

Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.

[51]

Applying that definition, the Supreme Court held the Scottish Parliament would modify section 28(7) if it required that subordinate legislation made under powers conferred by a UK Act but within devolved competence obtain the consent of Scottish Ministers in order to have legal effect:

[This] would render the effect of laws made by the UK Parliament conditional on the consent of the Scottish Ministers. It would therefore limit the power of the UK Parliament to make laws for Scotland…

[52]

It would therefore “affect the power of the Parliament of the United Kingdom to make laws for Scotland”, and so modify section 28(7) of the Scotland Act.

[64]

This decision was followed by the Supreme Court in the Incorporation of the UNCRC Bill Reference [2021] UKSC 42. In that case, it was held that, even although the Scottish Parliament can itself amend or repeal provisions in UK Acts which are within its competence, it did not follow that it could delegate to another body, such as the courts, the power “to alter the meaning and effect of legislation enacted by Parliament” or to declare that legislation to be of no effect if it conflicted with the UNCRC:

 As the judgment in the Continuity Bill case made clear, the Scottish Parliament cannot make the effect of Acts of Parliament conditional on decisions taken by other institutions, since to do so is to restrict Parliament’s power to make laws for Scotland.

[30]

The problems with this interpretation

The reasoning of the Supreme Court is unconvincing and has been the subject to considerable academic criticism – see, in particular, Mark Elliott and Mark Elliott and Nicholas Kilford. However, this article is less concerned with criticising those decisions than with considering the problems which they create for Scottish legislation and what might done be to remedy those problems. These problems have been the subject of recent papers and articles – see Aileen McHarg, ‘The Implications of the UNCRC (Incorporation) (Scotland) Bill Reference for the Scottish Human Rights Bill’ and Chris Himsworth, ‘Incorporation Bills in the Scottish Parliament: The Theoretical and Practical Consequences of Uncertainty’ [2024] PL 674.

At the time when the Scottish Parliament commenced its work on 2 July 1999, the only legislation within its competence was contained in or under UK Acts. These were the acquis which it inherited and, although there is no provision in the Scotland Act which expressly empowers the Scottish Parliament to do so, it was thought to have been implicit that, in making laws for Scotland, the Scottish Parliament had full powers, within its legislative competence, to amend, repeal or otherwise modify that acquis in whatever way it wished, including by delegating that power by subordinate legislation or otherwise to others. The view was taken that, as the Supreme Court stated in both cases “[the Scottish Parliament] has plenary powers within the limits of its legislative competence” (Continuity Bill case, [12]; Incorporation Bill case, [7]). If it did not have those powers, there would have been no need to protect certain enactments contained in or under UK Acts from modification in Part 1 of Schedule 4 to the Scotland Act.

Accordingly, the Supreme Court interpretation of section 28(7) came as some surprise. The effect of its interpretation is that the Scottish Parliament is limited in how it can deal with legislation within its own competence if such legislation appears in, or is made under, a UK Act because it is not clear in what ways it might be held to be modifying the UK Parliament’s power to make laws for Scotland.

This problem is compounded by the fact that, over the past 25 years, Scottish and UK legislation within devolved competence is now so intertwined that it is difficult to disentangle it. It is therefore very difficult to make Scottish legislation coherent while making it certain that it is not modifying section 28(7).  

The complexities which this interpretation of section 28(7) causes the drafting of Scottish Bills can be illustrated by what happened to the duty on public authorities to act compatibly with the UNCRC in section 6 of the Incorporation (Scotland) Bill. The original intention was that this duty should apply to all public authorities acting under provisions within devolved competence, no matter whether those provisions were contained in, or under, an ASP or a UK Act. When that Bill was amended at reconsideration stage to take account of the Supreme Court decision and became the UNCRC (Incorporation) (Scotland) Act in 2024, the section 6 duty required to be restricted so that it only applied to public authorities exercising a public function conferred by the common law or by:

• an ASP;
• a Scottish Statutory Instrument (“SSI”) made under an ASP; or
• an SSI made under a provision inserted into a UK Act by an ASP.

It was not considered possible to apply that duty to public authorities acting under provisions within the legislative competence of the Scottish Parliament conferred by:

• a UK Act;
• SSIs made under a UK Act; or
• amendments made to a UK act by an ASP,

even although those provisions contained many relevant functions of public authorities to which the compatibility duty should have applied. 

The effect was to reduce the scope of the Act, to complicate it and to emasculate the incorporation of the UNCRC. In her paper, Professor Aileen McHarg has provided a comprehensive analysis of those effects and has pointed out that there will be similar problems in connection with the incorporation of the international human rights treaties in the Scottish Human Rights Bill. However, these problems will arise not only in connection with the incorporation of international conventions but with many other Scottish Bills which require to amend, repeal or otherwise modify enactments contained in or under UK Acts.

This can hardly be described as giving “the Scottish Parliament… a coherent, stable and workable system within which to exercise its legislative power” which the Supreme Court stated in both cases was to result from the interpretation of the Scotland Act (Continuity Bill case, [12]; Incorporation Bill case, [7]).

What can be done?

It might be thought that the easiest way to remedy these problems would be to repeal section 28(7), because that repeal would not affect the fundamental constitutional principle of the sovereignty of the UK Parliament. However, it is doubted whether this would be politically acceptable to the UK Government in case the wrong inference was drawn.

Nor is it appropriate, even if it were possible to do so, to convert all the existing provisions in or under UK Acts, which are within the legislative competence of the Scottish Parliament, into ASPs or SSIs. This might be done either by consolidating those provisions into ASPs and SSIs but this would take considerable time, or would require general provisions similar to those used to convert EU law into retained EU law but likely to produce unexpected effects.

In these circumstances, it is suggested that the simplest way to respond might be to qualify section 28(7) by a provision, such as in a new section 28(9), which would have the effect of providing that the Scottish Parliament would not be held to be modifying section 28(7) if it enacted the kind of provisions which the Supreme Court considered in the Continuity Bill and Incorporation Bill cases to affect the power of the UK Parliament to make laws for Scotland. Such a provision would restore the effect of section 28(7) to what it had originally been thought to have been.

The actual wording of such a qualification would of course be for Parliamentary Counsel but it is suggested that section 28(9) might provide:

that the Scottish Parliament is not to be regarded as modifying that section if it amended, repealed or modified, in any way it thinks fit, any enactment contained in or under a UK Act which is within devolved competence.

Alternatively, if it is thought that the reference to devolved competence would be circular and leave section 28(7) open to similar arguments which persuaded the Supreme Court in those cases, the new section might provide:

for the purposes of section 29(2)(c) and paragraph 4(1) of Schedule 4, the Scottish Parliament is not to be regarded as modifying section 28(7) if it amended, repealed or modified, in any way it thinks fit, any enactment contained in or under a UK Act.

This would require primary legislation in the UK Parliament. Professor McHarg has suggested that a qualification having a similar effect could be made by an Order in Council under section 30, if it was made to paragraph 4 of Schedule 4 of the Scotland Act. That might be attractive in certain circumstances. However, it would be more acceptable politically if the qualification of section 28(7) was made by primary legislation so that its implications could be fully considered by Parliament. It might also be considered to be more appropriate if it was for the UK Parliament to qualify the statement of its legislative sovereignty in section 28(7) by two self-denying ordinances – the one being the political statement of the Sewel convention in section 28(8) and the other being the legal qualification in the suggested section 28(9).

My thanks are owed to Michael Gordon and Paul Scott for their helpful and incisive comments on an earlier draft. Any errors or omissions are my own.

Iain Jamieson is a retired UK and Scottish Government lawyer. He headed a small team of lawyers who instructed the drafting of the Scotland Act 1998.

(Suggested citation: I. Jamieson, ‘Altering the Effect of Section 28(7) of the Scotland Act 1998’, U.K. Const. L. Blog (11th November 2024) (available at https://ukconstitutionallaw.org/))