The decision in the AXA judgement today, which affirms the legislative competence of Holyrood, contains a carefully worded but nevertheless damning rebuke of the current SNP administration, which draws a clear line limiting the extent of the Parliament’s ability to legislate.

"As the Lord President’s remarks make clear, the Scottish Parliament is not a sovereign parliament in the sense that Westminster can be described as sovereign: its powers were conferred by an Act of Parliament, and those powers, being defined, are limited. It is the function of the courts to interpret and apply those limits, and the Scottish Parliament is therefore subject to the jurisdiction of the courts.

"As a result of the Scotland Act, there are thus two institutions with the power to make laws for Scotland: the Scottish Parliament and, as is recognised in section 28(7), the Parliament of the United Kingdom. The Scottish Parliament is subordinate to the United Kingdom Parliament: its powers can be modified, extended or revoked by an Act of the United Kingdom Parliament. Since its powers are limited, it is also subject to the jurisdiction of the courts."
Lord Hope, 12 October 2011

Witheringly, the judgement asserts that the Scottish Parliament is “not sovereign,” and in an apparent dismissal of both the First Minister’s and Justice Minister’s attacks on the Supreme Court earlier in the year which threatened to cut off funding for the court, added that the courts will not recognise “legislation of that extreme kind”.

“We do not need, in this case, to resolve the question how these conflicting views about the relationship between the rule of law and the sovereignty of the United Kingdom Parliament may be reconciled. The fact that we are dealing here with a legislature that is not sovereign relieves us of that responsibility,” Lord Hope said.

“It also makes our task that much easier. In our case the rule of law does not have to compete with the principle of sovereignty.

“The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. I would take that to be, for the purposes of this case, the guiding principle.

“Can it be said, then, that Lord Steyn’s endorsement of Lord Hailsham’s warning about the dominance over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in the devolved legislatures? I am not prepared to make that assumption.

“We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so.

“The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.”