The United Nations Convention on the Rights of the Child (UNCRC) is an international human rights treaty which sets out rights that every child has. The UK ratified the UNCRC in 1991 but it was not made directly applicable in our courts – that is about to change in Scotland.
Scotland’s UNCRC Bill
The last Scottish Parliament voted unanimously to bring the UNCRC into Scots law when it passed the UNCRC (Incorporation) (Scotland) Bill on 16 March 2021. The Bill – once it receives what’s called Royal Assent and once a date is set for its commencement – will mean that public authorities (so the government, courts, Children’s Hearings, local councils, and all public services like the police, schools and hospitals) will have to respect the UNCRC in everything they do. Children and young people and their representatives will be able to go to court to enforce their UNCRC rights. The Commissioner for Children and Young People Scotland and the Scottish Human Rights Commission will also be able to take legal action and where they think UNCRC rights have not been respected by public authorities.
The UK Government’s Challenge
The UK Government has asked the UK Supreme Court to rule on whether certain parts of the UNCRC Bill go beyond what the law says the Scottish Parliament can legislate on. They argue that specific parts of the UNCRC Bill could affect the UK Parliament’s power to make laws for Scotland in a way that is not allowed under devolution (there are details on the Supreme Court website and in this letter).
It is important to understand that the legal challenge is about the limits of devolution. The UK government is not challenging the Scottish Parliament’s right to bring the UNCRC into Scots Law.
What happens to the Bill now?
Everything is paused until the Supreme Court has given its judgment. The Supreme Court will hear the UNCRC case on 28 and 29 June.
If the Supreme Court decides everything in the Bill is okay as it is, the Bill can then be given Royal Assent and the necessary steps can be taken for it to be ‘commenced’, from which point it will be applicable law in Scotland.
If, on the other hand, the Supreme Court rules that some sections go beyond what is allowed under devolution, then the Bill will have to be changed before it can become law. In that case, it would be up to the Scottish Government to propose a new slightly different version of the Bill and the Scottish Parliament would have to vote in favour of that. In theory the Scottish Government could also decide to withdraw the Bill completely, but that is very unlikely.
Either way, this may cause a delay to the UNCRC becoming part of the law in Scotland but hopefully not for too long.
UPDATE FOLLOWING THE SUPREME COURT’S JUDGMENT:
The Supreme Court handed down its judgment in this case on 6th October 2021. In a unanimous decision it found that four provisions of the Bill went beyond the powers of the Scottish Parliament. The Bill must now be amended by the Scottish Parliament. The Scottish Government has confirmed its intention to take the legislation forward so that it can be amended and enter into force.
You can read more about the judgment and what happens next in a blog by our friends at Together (Scottish Alliance for Children’s Rights) here.