Children's rights bills to only cover post-devolution legislation following Scottish Government court defeat

The UNCRC bill was struck down by the Supreme Court in October 2021.

A flagship children’s rights Bill will be significantly narrowed to only cover post-devolution legislation in a bid to avoid further court action, the Scottish Government has said.

Incorporation of the United Nations Convention on the Rights of the Child (UNCRC) would have strengthened children’s rights across all devolved areas by placing these rights into law in Scotland.

Bit it was struck down by the Supreme Court in late 2021 following a legal challenge by the UK Government on the grounds the Bill went beyond the powers of the Scottish Parliament.

Social Justice Secretary Shirley Anne-Somerville announced plans to bring back the UNCRC bill to Parliament.

Scottish Government ministers promised to bring back a revised and amended Bill as soon as possible. However, that process has taken months and the Bill is now likely to be passed more than two years after the court defeat.

Social justice secretary Shirley-Anne Somerville told MSPs the Government had decided to drastically narrow the Bill’s terms, which will see public bodies only subject to the UNCRC’s provisions when it comes to duties covered by primary legislation from the Scottish Parliament.

This means inherited legislation, such as the Education (Scotland) Act, the Children (Scotland) Act 1995, and the Local Government (Scotland) Act 1973, and legislation where UK acts have been amended by Holyrood, will not be covered by the amended Bill.

Ms Somerville claimed this was due to a desire to limit the possibility of another court challenge as far as possible, though critics said this limitation on the Parliament’s ability to incorporate the UNCRC should have been obvious from the very start.

The minister told MSPs the UK Government’s lawyers could not guarantee there would not be another challenge. Ms Somerville said she would be writing to Scotland secretary Alister Jack to discuss the planned amendments.

She said: “This is what we consider will give us the greatest effective coverage for children’s rights, given the legislative landscape within which we operate as a devolved administration, and the implications of the Supreme Court judgement.

“It will also allow us to begin our journey to legislate for children's rights and wider human rights and provide a solid legal foundation on which to build in the future.”

Ms Somerville said it was her hope the revised Bill would be passed by Holyrood before the end of the year.

Scottish Conservative deputy leader Meghan Gallacher labelled the update “deeply disappointing” and accused the Government of having “dithered and delayed”.

She said: “The Supreme Court made their ruling in October 2021, giving the SNP more than 600 days to make the changes needed to pass this law. Instead of putting the necessary work in, the SNP have continued to politicise children’s rights and promoted grievance.

“Little progress has been made and this statement completely lacked any substance. The SNP must drop their political games, put our young people first and urgently confirm when this Bill will be able to be passed by MSPs.”

Scottish Labour’s social justice spokesperson Pam Duncan-Glancy said the narrowing of the Bill meant provisions such as education standards, special needs provision, and local authority duties towards children would not be covered.

She said: “This is a damning indictment of 16 wasted years during which the Cabinet secretary herself led on education. Does the Cabinet secretary accept that the failure to act on its self-proclaimed priority means that we’re still now relying on an outdated, Thatcherite piece of legislation that is older than me and that ultimately that inaction has led to a betrayal of children and young people today?”

Nick Hobbs, the acting Children’s Commissioner, said he was keen for there to be no further delay to the Bill becoming law. He said: “Children cannot wait any longer for their rights to be protected in law, nor for the culture change needed to make their rights real. For duty bearers and rights holders, we want the legislation to be clear.

“Our office continues to call for the Scottish Government to undertake a legislative audit to identify areas of law which are currently incompatible with the UNCRC.

"This should include Acts of the Scottish Parliament and UK Acts in devolved areas … the passage of the Bill need not, and must not, be delayed by this audit. It should be done as a parallel process, and can continue once the Bill has received royal assent.”

Mr Hobbs added: “The Scottish Government must live up to the promises they have made to the children and young people of Scotland and deliver the intention to incorporate the UNCRC to the fullest extent possible. Children need a clear and urgent timeframe for when their rights will be protected in law. They need decisive action now, not further unnecessary delay.”

Aileen McHarg, professor of public law and human rights at Durham University, said the changes which seek to limit complexity “seem[s] wise”.

She said: “The Scottish Government says today that any attempt to include functions arising under UK legislation within the scope of the duty would either be too complicated in practice, or would risk a further reference to the Supreme Court.

“Avoiding excessive complication seems wise, although restricting the duty to functions arising under devolved legislation will already be more complicated than the Bill as originally drafted.

“Why the Scottish Government has decided not to risk a further legal challenge, I don’t know. Perhaps they are concerned about yet more delay to enactment of the Bill, or perhaps they want to avoid the risk of the Supreme Court confirming the UK Government’s approach. In other words, they may think it preferable to leave the competence issue unresolved and keep their powder dry for another day.”

Prof McHarg added: “The minister referred to significant pre-devolution statutes affecting children’s rights in Scotland as being excluded from the scope of the Bill: the Education (Scotland) Act 1980 and the Children (Scotland) Act 1995. She did refer to the possibility of pre-devolution statutes being converted into devolved statutes and thereby being brought within the scope of the UNCRC Bill, but this would take time.

“The other issue about practical effect is that we do not yet know what approach the courts will take to the interpretation and enforcement of rights under the UNCRC. Unlike the ECHR, there isn’t a body of international jurisprudence interpreting these rights. Nevertheless, there will now be no possibility of any effect in relation to functions arising under UK statutes.”

Want to hear more from The Scotsman's politics team? Check out the latest episode of our political podcast, The Steamie.

It's available wherever you get your podcasts, including Apple Podcasts and Spotify.