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by Louise Wilson
20 May 2021
In context: United Nations Convention on the Rights of the Child (Incorporation) Bill

In context: United Nations Convention on the Rights of the Child (Incorporation) Bill

The royal assent of a bill to bolster children’s rights has been delayed after the UK Government announced it would challenge the Scottish legislation in the Supreme Court.

It claims the bill seeks to legislate in areas outwith the competence of the Scottish Parliament.

Political opponents have accused the UK Government of attacking the rights of children, but the government insisted the issue was not about the substance of the legislation, rather the split between devolved and reserved matters.

What is the UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill

Essentially, the bill brings the international treaty into Scots law. The Convention sets out children’s political, civil, economic and social rights, mirroring the Universal Declaration of Human Rights but with added protections specific to minors. The UK signed the Convention in 1990 and ratified it in 1991. However, because it only exists in international law rather that domestic law, recourse for when those rights are breached is limited. The UN CRC Bill seeks to resolve this problem. 

Once enacted, the legislation places a duty on public authorities to act in a way compatible with the Convention, including consulting children on decisions that will affect them. It provides courts with the power to decide whether legislation is compatible and also empowers Scotland’s children and young people’s commissioner to take legal action if rights are being breached. 

What is the problem?

Despite being passed unanimously and given the go-ahead by the presiding officer, the UK Government contends the bill is outwith the competence of the Scottish Parliament. This means it strays into policy areas which, under the devolution settlement, are reserved to Westminster.
Specifically, Scottish Secretary Alister Jack warned section 6 of the bill, which focuses on ensuring public authorities comply with the Convention, could be seen to place legal obligations on UK ministers in reserved areas. The definition of public authority in the bill covers “any person … whose functions are functions of a public nature”.

Sections 19-21 of the bill, which allow courts to strike down legislation or make a declaration about Acts which it considers incompatible with the Convention, may also be challenged. Jack said these sections sought to constrain the UK Parliament’s ability to make laws for Scotland.
The UK Government has a four-week window between the passage of any bill at Holyrood and royal assent to decide whether to challenge the planned law. It has done so for this.

What happens next?

The Supreme Court will now hear the arguments from both governments. While that happens, the bill will not receive royal assent and will therefore not become law. The Supreme Court can choose to either uphold the bill or refer it back to the parliament for amending. 
It is difficult to know how long this process could take as only one other bill has been challenged in this way before – the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill back in 2018. That took eight months from referral to the courts to the judges’ ruling.

What has been the response to the challenge?

Nicola Sturgeon tweeted: “Jaw-dropping. The UK Tory government is going to Court to challenge a law passed by @ScotParl unanimously. And for what? To protect their ability to legislate/act in ways that breach children’s rights in Scotland. Politically catastrophic, but also morally repugnant.”

But a UK government source said: “This delay to the legislation could easily have been avoided. Sadly, it appears the Scottish Government are more interested in stirring a constitutional row than getting the UNCRC bill into law at the first opportunity.”

Political wrangling aside, children’s organisations and other stakeholders have expressed disappointment that the bill will be delayed and hope for a swift resolution. In addition, Scotland’s children’s commissioner Bruce Adamson has highlighted the delay could be partially offset by bringing the commencement date earlier. Currently the legislation is set to come into force six months from royal assent.

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