Incorporation Bills in the Scottish Parliament: The theoretical and practical consequences of uncertainty

When the United Kingdom (UK) law officers referred to the UK Supreme Court two Bills (both treaty incorporation Bills) passed by the Scottish Parliament, the court responded by holding them both to be incompetent on the recently developed grounds that they impliedly (and impermissibly) amended s.28(7) of the Scotland Act 1998 which provides that "[t]his section does
not affect the power of the Parliament of the United Kingdom to make laws for Scotland". This article responds to the court’s judgment by raising doubts as to its constitutional basis and by arguing that it has created great uncertainty in the newly devised limits to the powers of the Scottish Parliament. This has adversely affected not only the progress to the statute book of the two Bills but also, potentially, the future course of devolved legislative practice in general, and even of devolution itself.