Incorporation of international law: devolution and constitutional constraints in Scotland

This article analyses the recent cases on Scottish devolved competence and the wider constitutional constraints on the Scottish Parliament to determine the challenges facing the incorporation of or alignment with international law in Scotland, with a view to informing any such future legislative exercise. It first outlines the relevant provisions of the devolved settlement in the Scotland Act 1998. It then considers the recent legal challenges to Scottish Bills and Acts based on legislative competence (principally the Indyref Bill case, the first For Women Scotland case, and the section 33 references raised against the Legal Continuity Bill, the UNCRC Bill and European Charter of Local Self-Government Bill) to determine what lessons can be learned about the constraints which might be faced by a future attempt to incorporate or align with international law. It then considers the wider constitutional constraints which could affect incorporation or alignment, including the implications for devolution of the second For Women Scotland case on equality law and the section 35 veto exercised against the Gender Recognition Reform Bill. This article concludes by reflecting on what these various identified constraints might mean for a future incorporation or alignment exercise, including the Scottish Human Rights Bill as incorporating legislation which is anticipated in the next parliamentary session.