Update on Incorporating UN Convention into Scots Law
Amendments to legislation incorporating the UN Convention on the Rights of the Child will deliver a clear, coherent and workable Bill that provides some valuable protections for the rights of children in Scotland.
The UNCRC (Incorporation) (Scotland) Bill was passed unanimously by the Scottish Parliament in 2021 but certain provisions within it were later ruled outwith the parliament’s legislative competence at the Supreme Court.
The Bill requires all Scotland’s public authorities to take proactive steps to protect children’s rights and gives children, young people and their representatives a new ability to use the courts to enforce their rights.
Changes will be brought forward after the parliamentary recess which will mean public authorities will only be required to comply with the UNCRC requirements when delivering duties under powers in an act of the Scottish Parliament.
Social Justice Secretary Shirley-Anne Somerville told Parliament that this is the only way to minimise the risk of a further referral to the Supreme Court, while also minimising the complexity for those using the legislation. However ministers will continue to call for the UK Government to adopt the convention into UK law.
The intent behind the UNCRC Bill is to deliver a culture of everyday accountability for children’s rights across public services in Scotland. It would require all Scotland’s public authorities to take proactive steps to ensure the protection of children’s rights in their decision-making and service delivery and make it unlawful for public authorities, including the Scottish Government, to act incompatibly with the UNCRC requirements as set out in the Bill. Children, young people and their representatives would have a new ability to use the courts to enforce their rights.
The UNCRC Bill was passed by the Scottish Parliament unanimously on 16 March 2021.
Certain provisions in the Bill were referred to the Supreme Court, preventing it from receiving Royal Assent. The Supreme Court judged in October 2021 that section 6 (relating to the compatibility duty) and sections 19, 20 and 21 (relating to the interpretative obligation, strike down power and incompatibility declarator power) were outwith legislative competence of the Scottish Parliament. This was an area of the devolution settlement that had not been previously tested in the courts.
In consultation with stakeholders, including the Children’s Commissioner Office, Together, The Scottish Human Rights Commission, Unicef UK and members of the Scottish Youth Parliament, ministers have reached the conclusion that the most effective route forward is to progress the option that minimises the risk of a further referral to the Supreme Court, and which also minimises the complexity users will need to navigate.
Ministers will now seek to confirm with the Parliamentary authorities that amendments are admissible under Standing Orders for Reconsideration and then lodge a motion so that Parliament can confirm its willingness to reconsider the Bill.