In this blog our Head of Legal Policy, Katy Nisbet reflects on the recent passing of the UNCRC (Incorporation) (Scotland) Bil in the Scottish Parliament, the changes made and future steps.
On Thursday 7th December 2023 the UNCRC (Incorporation) (Scotland) Bill was passed unanimously by MSPs following a debate on amendments in the Scottish Parliament. The Bill was first introduced to 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 then too – in March 2021 – but 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 outwith the powers of the Scottish Parliament. Specifically, they ruled that four provisions fell outwith the Scottish Parliament’s powers because they impacted UK bodies and UK Legislation. The Scottish Government argued that the Bill needed 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 main 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 so.
Now that the amended Bill has passed there is a four week period to allow the UK Government to consider whether further challenge to competency of the Bill should be made. If there is no further challenge then the Bill will receive Royal Assent and after a 6 month commencement period the Bill will be law in Scotland.
What changes have been made?
By amending the Bill to bring it within the devolved powers of the Scottish Parliament, the scope of the Bill – in so far as it relates to an enforceable compatibility duty – has been restricted.
In essence the duty on a public body to comply with the UNCRC, and the extent to which that compliance can be enforced by a Court, has been restricted to devolved functions conferred by Acts of the Scottish Parliament and secondary legislation authorised by Acts of the Scottish Parliament. It is also made clear in the guidance notes that where a Westminster Act is amended by an Act of the Scottish Parliament the amended text inserted into the UK Act is considered to be part of that original Act. This means that any amendments to devolved areas of law contained in UK Acts – even if made by the Scottish Parliament using a Scottish Act – will not fall within the scope of the Act.
This is, of course, disappointing – and takes important foundational legislation such as the Children (Scotland) Act 1995, the Education (Scotland) Act 1980 and Social Work (Scotland) Act 1968 outwith the scope of legal challenge. However, we should not overlook the fact that incorporation of the UNCRC does still represent an historic step forward in rights protection for children. The Bill does more than create direct judicial enforcement of rights infringements, it also introduces non-judicial accountability measures, and mechanisms – such as the Children’s Rights Scheme – which will move public bodies further towards a rights respecting culture in Scotland. More importantly, it also creates the foundation upon which the Scottish Government can build.
So while we should all be rightly celebrating the passing of this Bill into law, we must also focus on how we can build develop its scope as quickly and comprehensibly as possible. There were encouraging statements from the Cabinet Secretary about the intent of the Scottish Government in supporting this development, we join with Together, and many other children’s rights organisations, to call on the Scottish Government to commit to:
- Setting out a clear timetable for legislative review – i.e. reviewing what legislation is within scope and what is out of scope. This will provide much needed clarity for children and young people.
- Prioritising bringing aspects of UK Acts into Scots law over time to bring foundational legislation within the scope of the UNCRC Bill.
- Minimising the use of Scottish Acts to amend UK Acts (as these amendments would be outwith the scope of the UNCRC Bill). Instead future changes to devolved areas of law should be made using ‘stand-alone’ Scottish Acts which will be within the scope of the Bill.
- Commit to continuing the UNCRC Implementation programme beyond March 2024.