25 May 2022

Yesterday the Scottish Government announced how it plans to bring the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [UNCRC Bill] within the Scottish Parliament’s devolved powers following the Supreme Court ruling in October 2021.

The UNCRC Bill was introduced in the Scottish Parliament in September 2020. Its aim was to incorporate the Convention directly into Scots law, providing the children of Scotland with a direct way of ensuring their rights are protected and enabling a proactive culture of day-to-day accountability for children’s rights. The Bill was unanimously passed by the Scottish Parliament in March 2021, but it was then referred by the UK Government to the Supreme Court because the UK Government thought that certain parts of the Bill breached devolution rules.

In October 2021 the Supreme Court issued their decision that certain aspects of the UNCRC Bill were out with the powers of the Scottish Parliament. Specifically, they ruled that four provisions fell out with the Scottish Parliament’s powers because they impacted UK bodies and UK legislation. The Scottish Government argued that the Bill needs to cover actions and legislation of the UK government that impacts devolved issues. For example, education is an entirely devolved matter but one of the pieces of legislation that underpins it is the Education (Scotland) Act 1980 which is a UK Act. However, the Supreme Court judgement says that if a UK Act is not compliant with UNCRC, the UNCRC Bill cannot be used to make it compliant.

Following the Supreme Court decision, the Scottish Government has to find a way to bring the UNCRC Bill within their powers so it can become law in Scotland. They can either negotiate with the UK government to amend the devolution settlement to allow the Bill to pass as it is, or they can amend the Bill to bring it in line with the current devolution rules.

Yesterday the Scottish Government announced that negotiations with the UK Government to amend the devolution settlement have been unsuccessful. They are now proposing to amend the Bill by:

  • Expressly limiting its scope to devolved bodies and devolved functions

  • Making it clear that the judicial remedies do not apply to UK Acts

While this does limit the ambition of the Bill, it will still provide the children of Scotland with a route to challenge and enforce their rights in a way that is not currently possible. The Scottish Government also think that the devolution settlement does not stop them amending any legislation that deals with devolution issues – and so it is likely that where a UK Act deals with a devolved matter they will seek to bring those laws in line with the UNCRC.

What happens next?

There will now be a three week period of engagement with key stakeholders, including children and young people. The Scottish Government will also release a timetable for the reconsideration stage in Parliament that will follow. They hope that this will be done with some urgency, but a reconsideration has not been carried out before, and there is no clarity on how long the process may take. We will keep you up to date with any news when we have it.