On 28-29th June, the UK Supreme Court will consider whether certain provisions of the UNCRC (Incorporation) (Scotland) Bill exceed the powers of the Scottish Parliament. This blog answers your questions!
What is the UNCRC Bill?
The Scottish Parliament passed the UNCRC (Incorporation) (Scotland) Bill on 16th March 2021. Once in force, the Bill will make children’s human rights under the UN Convention on the Rights of the Child part of the law in Scotland. This includes things like the right to education, the right to health and children’s right to have a say in decisions that affect their lives.
Why is a case going to the Supreme Court?
The UK Government is concerned that parts of the Bill might go beyond the powers of the Scottish Parliament. This is a technical matter about constitutional law, rather than the intention behind the Bill. The UK Government has said that protecting vulnerable children and protecting children’s rights is a priority it shares with the Scottish Government.
What powers does the Scottish Parliament have?
The Scottish Parliament has limited powers – this means there are some topics it cannot make laws about. These topics include the constitution, immigration and defence. It is only the UK Parliament that can pass new laws on these issues. This is a key part of devolution.
If the Scottish Parliament appears to go beyond its powers, this can be challenged in the UK Supreme Court.
Which parts of the Bill will the court look at?
The UK Government has asked the Supreme Court to look at four sections of the Bill. These sections cover:
- The definition of a “public authority” (in other words “who” needs to follow the new law);
- How laws should be interpreted to make sure they respect children’s human rights;
- The powers of Scottish courts to deal with laws that they think don’t comply with children’s human rights.
The UK Government says these sections could affect UK Government Ministers and limit the UK Parliament’s power to make laws for Scotland.
MSPs debated this when the Bill was going through the Scottish Parliament. The Deputy First Minister pointed out that some UK laws which were made for Scotland before devolution cover topics which are now devolved – for example the Education (Scotland) Act 1980 and Children (Scotland) Act 1995. He said it was right that these should be covered by the new Bill.
What might the Supreme Court say?
The Supreme Court might decide that the Bill is within the powers of the Scottish Parliament or it might say that parts of it need to be changed. If parts need changed, then the Supreme Court will send the Bill back to the Scottish Parliament to make these changes.
It is not clear how quickly the Supreme Court will publish its decision following the hearing.
What does all this mean for children’s human rights?
The Bill cannot become a law until after the Supreme Court has made its decision, any issues the Supreme Court identifies have been fixed and the Bill has received Royal Assent. However, the vast majority of work needed to progress UNCRC implementation can and is continuing. Together is already supporting Scottish Government with a phased approach to producing guidance that will support everyone in Scotland progress children’s rights.
Once Royal Assent is given, the Bill automatically enters into force six months later. However, Scottish Government can choose to commence the Bill even sooner than six months after Royal Assent. Together will be encouraging Scottish Government to do so, recognising how important it is that children’s rights are protected in law. In the meantime, public bodies must continue to prepare for the changes the Bill will introduce.
Together will continue to support full implementation of children’s human rights in line with the UK’s existing obligations under the UN Convention on the Rights of the Child.
How can I follow what’s happening?
The hearing will be live-streamed here on 28th and 29th June.
Together will also do a round-up of each day’s developments. Follow our Twitter (@together_sacr) and subscribe to our e-newsletter for updates.
You can also get in touch via info@togetherscotland.org.uk.
Artwork by Liv Wan
Together (Scottish Alliance for Children's Rights) 
[…] At the heart of this legal challenge is the UK Government’s belief that aspects of the UNCRC Bill go beyond the powers of the Scottish Parliament. You can read more about this and the background to the case in our earlier blog. […]
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