MSPs agree historic motion to reconsider struck down Scotland children's rights law

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was ruled to be outside Holyrood’s competence by the Supreme Court in October 2021

MSPs have unanimously agreed to reconsider the SNP’s flagship children’s rights Bill after it was struck down by the Supreme Court and ruled to be outwith of Holyrood’s competence.

Ministers have faced criticism from opposition parties over the two years taken to bring the Bill back to Parliament.

However, in a historic first for the Scottish Parliament, MSPs voted to allow the Government to bring the bill back for reconsideration – the first time in the history of Holyrood this has happened.

Holyrood ministers have said they are 'absolutely committed' to ensuring Scotland is the first part of the UK to enshrine children’s rights into domestic law. Picture: Getty Images

The move will allow any member of Parliament to bring forward amendments designed to make the Bill competent and suitable for royal assent.

Shirley-Anne Somerville, the social justice secretary, wrote to Parliament earlier this week setting out the planned amendments, which significantly curtail the reach of the Bill.

Judges at the Supreme Court ruled the initial Bill was beyond the powers of the Parliament due to it affecting devolved legislation passed initially by the House of Commons, but inherited by Holyrood post-devolution.

Experts say this ruling was unexpected and has made a “dog’s breakfast” of the initial proposals.

In bringing the Bill back to Parliament, Ms Somerville said the Government has tried to balance “protecting children’s rights to the maximum extent possible” alongside “minimising the risk of another Supreme Court referral”.

As a result, public authorities will only be required to comply with the requirements of the United Nation Convention on the Rights of the Child (UNCRC) when delivering duties under powers set out by an act of the Scottish Parliament.

Ms Somerville conceded this was a “disappointing loss of coverage for children’s rights, compared to what we originally hoped to achieve”. But she added: “It nevertheless represents the maximum effective coverage we think we can achieve in the present devolved context.”

The Scottish Parliament will “hopefully” debate and vote on the changes proposed to the legislation, to enable it to comply with the Supreme Court ruling, later this year, Ms Somerville said.

The minister said: “Although the scope of the compatibility duty in the Bill has been narrowed, bringing this Bill back will provide an important signal about the kind of country we want to be, as well as provide a solid legal foundation on which to build in the future.

“We remain absolutely committed to Scotland being the first UK nation to incorporate the UNCRC into domestic law, ensuring we are a country that respects, protects and fulfils children’s rights.”

Conservative MSP Roz McCall, however, criticised ministers for the time taken to bring the Bill back to Holyrood.

“What on earth has the Scottish Government been doing?” she asked.

“Instead of making the necessary changes to the Bill, required by the Supreme Court, the SNP have deliberately provoked grievance, politicising children’s rights and I find that abhorrent.”

Labour MSP Martin Whitfield said although the Bill had been “narrowed in some scope”, it would “still increase protections for those who are most vulnerable”. He said: “It will demonstrate to children and young people in Scotland that we will continue to uphold the commitments to them, now and into the future.”