The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (UNCRC Bill) was introduced on 1 September 2020 and passed unanimously on 16 March 2021.
However, UK Law Officers referred the Bill to the Supreme Court on the grounds that some of its provisions were outside the legislative competence of the Scottish Parliament.
The Supreme Court unanimously ruled that four provisions were outside legislative competence. This meant the UNCRC Bill could not become law as passed.
What does the Bill aim to do?
The UNCRC is an international treaty setting out the rights that children and young people are entitled to. It was adopted in 1989 and ratified by the UK in 1991. This means that the UK Government has a legal obligation to implement the treaty. However, the UNCRC does not give individuals legal rights in UK courts.
The aim of the Bill is to incorporate the UNCRC into Scots law. It will mean that public authorities, including Scottish Ministers, will be legally obliged to respect children’s rights, by acting in a way that is compatible with UNCRC requirements. Children and their representatives will be able to challenge public authorities in the courts for breaches of their rights. Although the scope of what may be challenged has reduced since the Supreme Court ruling.
The Bill, as passed, requires courts to read and give effect to legislation in a way that is compatible with the UNCRC. It includes powers to ‘strike down’ incompatible legislation, meaning it is not law, or to issue an incompatibility declarator, which is an order from the court about a specific legal duty or right. Again, the scope of legislation that can be deemed incompatible with the UNCRC has been reduced.
There are a range of other provisions, including powers for the Children’s Commissioner and Scottish Human Rights Commission to take legal action in relation to children’s rights, a duty on Scottish Ministers to set out a Children’s Rights Scheme, and a requirement on public bodies to report on their compliance with the UNCRC.
What did the Supreme Court say?
The Supreme Court judgment was issued on 6 October 2021.
There was no dispute about the Scottish Parliament’s decision to incorporate the UNCRC into Scots law.
However, the Court said that section 28(7) of the Scotland Act 1998 preserves an unqualified power that the UK Parliament can make laws for Scotland. It was ruled that the provisions regarding a court’s duty to read and give effect to legislation that is compatible with the UNCRC, the power to strike down legislation or declare it incompatible with the UNCRC, are outside legislative competence (sections 19-21). This is because those provisions applied to Acts of the UK Parliament in devolved areas, as well as Acts of the Scottish Parliament. This would affect the power of the UK Parliament to make laws for Scotland.
Section 6 of the Bill would make it unlawful for any public authority to act in a way that is not compatible with the UNCRC. It was not disputed that section 6 is outside the legislative competence of the Scottish Parliament. However, the Scottish Government argued that the provision could be interpreted by the courts on a case-by-case basis. The Court said that the way the provision is drafted means it could apply to UK authorities working in reserved areas and that it should not be left to courts to decide. It therefore goes beyond the legislative competence of the Scottish Parliament.
Scottish Government response to Supreme Court ruling
Following the Supreme Court ruling, the Scottish Government confirmed its commitment to UNCRC incorporation. Then on 24 May 2022, the former Deputy First Minister and Cabinet Secretary for Covid Recovery, John Swinney MSP, made a statement to the parliament indicating his preference to return the UNCRC Bill to Parliament via the Reconsideration Stage.
On 27 June 2023, the Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, said that changes to the Bill would be brought forward after the parliamentary recess. The changes will mean public authorities will only be required to comply with the UNCRC requirements when delivering duties under common law or powers in an Act of the Scottish Parliament.
In the ministerial statement, the Cabinet Secretary said that in drafting amendments to the compatibility duty, the Scottish Government has tried to balance three considerations:
- minimising the risk of another Supreme Court referral
- making the law as accessible as possible for users
- protecting children’s rights to the maximum effective extent possible.
A motion for UNCRC Reconsideration was debated on 14 September 2023. The motion was approved, meaning the Parliament agreed to reconsider the UNCRC Bill.
This is the first time the Parliament has held a Reconsideration Stage for a Bill. For background on the process see SPICe Briefing on the Reconsideration Stage.
Amendments
Draft amendments and explanatory material were shared with the Equalities, Human Rights and Civil Justice Committee on 13 September 2023.
The amendments were lodged on 18 September 2023.
The amendments limit the coverage of the public authority compatibility duty (section 6) and the interpretative duties (sections 19-21) so that they only apply to Acts of the Scottish Parliament.
It means that the compatibility duty on public authorities will apply to legislative functions that are required by Acts of the Scottish Parliament, but not Acts of the UK Parliament in devolved areas. Key legislation will not be covered, such as the Education (Scotland) Act 1980 and the Children (Scotland) Act 1995.
Committee consideration
The Equalities, Human Rights and Civil Justice Committee heard evidence on 31 October 2023 from human rights and children’s rights organisations, public authorities and Dr Andrew Tickell (Glasgow Caledonian University).
In summary:
- there was continued support for the principle of UNCRC incorporation
- public authorities expressed concern about how they will navigate the new legislative landscape, the gaps created in the enforceability of children’s rights, and practical implementation issues
- children’s rights and human rights organisations said that public authorities should be complying with the UNCRC regardless of the Bill
- there is a shared view that the Scottish Government must provide clear information and guidance on the Bill
- there has been a call from public authorities to review what legislation is in and out of scope of the Bill
- there has been a call from rights organisations to identify what provisions could be brought within scope over time.
Scottish Government response to Committee consideration
The Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, gave evidence to the Committee on 7 November 2023.
The Committee set out its consideration and support for the amendments in a letter to the Cabinet Secretary on 17 November 2023.
The Cabinet Secretary responded to the Committee on 28 November 2023, and in summary said:
For public authorities:
- there will be statutory guidance to help public authorities comply with the compatibility duty and non-statutory guidance on taking a children’s rights approach
- there will be a national improvement programme which will include a single point of access to resources and training, and funding of the Improvement Service to help local authorities implement the UNCRC.
For children, young people and their representatives:
- It will now be challenging to establish when powers can be used if there is a rights breach. However, the Scottish Government says that in most cases a resolution can be sought through internal complaints’ processes. To support this, funding has been provided to the Scottish Public Services Ombudsman to develop a child-friendly complaints process. Funding has also been provided to Clan Childlaw and the Scottish Child Law Centre to support free legal advice on whether there is a route to remedy through the courts.
Review of legislation
- Officials have been asked to commission a review of UK Acts in devolved areas. The purpose is to identify provisions in UK Acts that may benefit from being re-enacted in Acts of the Scottish Parliament. There is no timescale for this, and it is recognised it will take some time.
- The Cabinet Secretary said there is a risk of unintended consequences with an exercise to establish what legislation is in or out of scope: “The question of what is in the scope of the compatibility duty should only become relevant if and when a rights issue cannot be addressed without the need to consider bringing proceedings in a court or tribunal.”
What happens next?
The amendments will be considered by the Parliament on 7 December 2023.
Two further amendments were lodged on 20 November 2023 and 28 November 2023. These appear to be technical changes. One amends the reporting date for public authorities. The other clarifies that a function in one Act, which is modified by another Act, is to be regarded as a function conferred only in the modified Act.
If the Parliament approves the UNCRC Bill at Reconsideration Stage, it is subject to a four week period during which the UK Government Law Officers and Secretary of State may make a statutory challenge to the Bill. If there is no statutory challenge within the four week period, the Bill may be submitted for Royal Assent by the Presiding Officer and become an Act of the Scottish Parliament.
Nicki Georghiou, Senior Researcher, Equalities and Human Rights