A two-day hearing to consider whether the UNCRC (Incorporation) (Scotland) Bill is within the powers of the Scottish Parliament has drawn to a close. Earlier today, judges heard arguments from the Scottish, Welsh and UK governments. The judges will now reflect on what they have heard before publishing their decision.
If you missed what happened during the first day of proceedings, you can catch up here. You can also find out more about the background to the case here.
What did the Scottish Government say?
The Scottish Government’s barrister said that the Scottish Parliament has the powers to incorporate international treaties like the UNCRC and that this was not something that the UK Government was disputing.
He argued that “on a proper reading” the UNCRC Bill does not limit the continuing power of the UK Parliament to legislate for Scotland and rejected the UK Government’s position that the Bill would “subvert” processes set out in the Scotland Act. He said that it was not necessary to set out the limits of Holyrood’s power in every Bill and that Scottish courts could read certain provisions “narrowly” to keep them within Holyrood’s powers. The judges questioned whether this reliance on court interpretation risked legal uncertainty.
What did the Welsh Government say?
The representative for the Welsh Government said that it is within the powers of the Scottish Parliament (and the Senedd) to pass legislation which puts conditions on the legal effect of UK legislation. Nevertheless, she said this did not limit the power of the UK Parliament to legislate for Scotland.
What did the UK Government say?
The UK Government’s barrister made a closing submission in which he sought to rebut the arguments put forward by the Scottish and Welsh Government. His speech focused on section 6 of the UNCRC Bill which sets out that public authorities must not act in a way that is incompatible with the UNCRC.
What happens now?
The judges will now consider all the arguments before making their decision. It is not clear how quickly this decision will be published.
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 may send the Bill back to the Scottish Parliament to make these changes.
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?
Artwork by Liv Wan