A new report says an unexpected interpretation of the Scotland Act by the UK Supreme Court has caused confusion over how laws are made in the UK's devolved parliaments of Scotland, Wales and Northern Ireland.
The report, co-authored by Professor Aileen McHarg of our Law School, says the Court's reading of Section 28(7) of the Act has made it harder for devolved governments to pass laws, even in areas where they are normally responsible.
What is Section 28(7)?
Section 28(7) of the Scotland Act 1998 means that while the Scottish Parliament can make its own laws, the UK Parliament in Westminster still has the power to make laws for Scotland.
This reflects how devolution works in the UK, with some powers shared but Westminster remaining legally supreme.
For many years, Section 28(7) was seen as a background rule and was not thought to limit what the Scottish Parliament could do in practice.
Supreme Court interpretation
That changed after the Supreme Court looked at several Scottish Bills.
These included laws designed to embed children's rights, based on the United Nations Convention on the Rights of the Child, and a Bill aimed at protecting local government.
The Supreme Court ruled that some parts of these laws could not go ahead.
It said they would change how Section 28(7) works by altering the effect of future UK laws in Scotland.
As a result, large parts of these Bills had to be removed or rewritten.
Wider impact on legislation
The report, co-authored by Professor McHarg, Professor Nicola McEwen of the University of Glasgow, Professor Jo Hunt of Cardiff University, and Dr Chris McCorkindale of the University of Strathclyde, explains that this decision has had wider effects.
This includes making devolved governments less certain about what kinds of laws they are allowed to pass.
Even when a law focuses on devolved areas like education or children's welfare, it could still be blocked if it is seen as affecting Westminster's power.
This uncertainty has already affected new legislation, including a Bill linked to "the Promise", a commitment made by the Scottish Government to improve outcomes for children and families with experience of care.
Recommendations for the future
The report authors argue that this situation is not sustainable and that clearer rules are needed so devolved parliaments can make laws with confidence.
The report sets out practical ways for the UK and devolved governments to work together to reduce uncertainty and ensure the system of devolution works as intended.
