Landmark children’s rights legislation will go ahead, Ministers
have pledged as they highlighted the limitations of the
devolution settlement.
Deputy First Minister said the Scottish Government remained committed to
incorporating the United Nations Convention of the Rights of the
Child (UNCRC) into domestic law to the maximum extent possible.
The UNCRC (Incorporation) (Scotland) Bill was backed unanimously
by the Scottish Parliament in March, but could not be implemented
because of a legal challenge brought by UK Government law
officers.
The Supreme Court has now ruled that certain parts of the Bill
fall outwith the competence of the Scottish Parliament.
Mr Swinney said the ruling exposes the limitations in the
devolution settlement, but he pledged that protections in the
Bill will go ahead.
The Deputy First Minister added:
“While we fully respect the court’s judgment and will abide by
the ruling, we cannot help but be bitterly disappointed. It makes
plain that we are constitutionally prohibited from enacting
legislation that the Scottish Parliament unanimously decided was
necessary to enshrine and fully protect the rights of our
children.
“The judgment exposes the devolution settlement as even more
limited than we all - indeed the Scottish Parliament itself -
had understood. It sets out new constraints on the ability of our
elected Scottish Parliament to legislate to protect children’s
rights in the way it determines.
“There is no doubt that the implications of this judgment are
significant from a children’s rights perspective. This Bill will
not now become law in the form which our Parliament agreed, but
we remain committed to the incorporation of the UNCRC to the
maximum extent possible as soon as practicable. Whilst the
judgment means that the Bill cannot receive Royal Assent in its
current form, the majority of work in relation to implementation
of the UNCRC can and is continuing.
“The UNCRC is the most widely ratified international treaty, but
very few countries have committed to take the journey that
Scotland so clearly wants to take. To everyone who has walked
with us this far on that journey, encouraging us along the way, I
want to reassure you that we will reach our destination. This
Government remains committed to the incorporation of the UNCRC to
the maximum extent possible.
“There is no doubt that we may not yet wholly comprehend all the
implications from this judgement – it will require careful
consideration and I will keep Parliament updated.”
Children and Young People’s Commissioner Scotland Bruce Adamson
said:
“Scotland is committed to protecting the rights of children and
young people. The Scottish Parliament was unanimous in its
support for this law which would ensure that decisions are taken
in children’s best interest; that children have a say in decision
making; and that all available resources are used to the maximum
extent possible to fulfil rights like education, health, and an
adequate standard of living – and that there is accountability
when things go wrong.
“The last 18 months have shown just how urgent it is to
strengthen rights protections for children. We will work with the
Scottish Government and the Scottish Parliament in its role as a
Human Rights Guarantor to get this done as soon as possible.”
The Supreme Court also ruled that certain provisions in the
European Charter of Local Self-Government (Incorporation)
(Scotland) Bill are outwith the competence of the Scottish
Parliament. The Bill, which is intended to further strengthen the
relationship between the Scottish Government and local
government, started as a Member’s Bill and was passed unanimously
by the Scottish Parliament in March 2021.
Background
The UNCRC Bill would make Scotland the first country in the UK,
and the first devolved nation in the world, to directly
incorporate the UN Convention on the Rights of the Child (UNCRC)
into domestic law.
It would make it unlawful for public authorities to act
incompatibly with the incorporated UNCRC requirements, giving
children, young people and their representatives the power to go
to court to enforce their rights.
The UNCRC is the most widely ratified human rights treaty in the
world and sets out the specific rights that all children have to
help fulfil their potential, including rights relating to health
and education, leisure and play, fair and equal treatment,
protection from exploitation and the right to be heard.
The European Charter of Local Self-Government (Incorporation)
(Scotland) Bill was intended to develop and further strengthen
the relationship between the Scottish Government and local
government in Scotland, and so ensuring that priorities and
policies are developed and delivered in partnership. Again, this
Bill could not be implemented because of a legal challenge
brought by UK Government law officers.
