Why the framework for the Childrens' rights Bill in Scotland has been left fragmented and incoherent

What the UN Convention on the Rights of the Child Bill tried to do was simple.

As initially passed, it said any law that fell within Holyrood’s legislative competence could be reviewed by the Scottish courts for its compatibility with children’s rights. This approach had a simplicity and a coherence to it. The inspiration came from the Human Rights Act.

The Scotland Act says Holyrood can pass laws about any topic that isn’t explicitly reserved. MSPs can make or unmake any law within devolved competence, including UK legislation.

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When Holyrood was established, it inherited a large and complex statute book from Westminster. Between 1707 and 1998, London has passed laws in many areas of devolved competence – from healthcare to family law.

Many of these laws remain in force. Since devolution, countless Westminster Acts have been amended, with lines dropped and words added to bring them up to date.

The Bill’s original approach would have subjected all these legal sources to children’s rights, ensuring the provisions had the maximum impact. This approach also made it simple for litigants. They didn’t have to ask themselves who passed the law – only whether it fell within Holyrood’s powers.

The UK Supreme Court’s adverse judgment made a dog’s breakfast of this aspiration. Adopting an interpretation of the Scotland Act that surprised most legal observers, Lord Reed decided while Holyrood could make its own legislation subject to children’s rights – laws originating in Westminster couldn’t be touched to preserve the UK Parliament’s “unqualified legislative power” to make laws for Scotland.

This might sound simple. But when you remember the Scottish statute book is like Swiss cheese – with bits made by MPs and bits by MSPs – you can begin to imagine the horrendous complexity this created.

To avoid this, the Scottish Government has decided to limit the application of children’s rights to laws originating in Holyrood. They had little option, but this approach means great swathes of the law will be immune from children’s rights review. In one of the more striking examples, the Children (Scotland) Act 1995, which sets out key rules on adoption and the care system, won’t be subject to the new children’s rights regime.

Children’s rights may be brought into Scots law at last – but thanks to the Supreme Court, the framework now looks seriously fragmented and incoherent.

- Andrew Tickell is a senior law lecturer at Glasgow Caledonian University



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