On 6th October, the UK Supreme Court gave its judgment on the UNCRC (Incorporation) (Scotland) Bill. The judges unanimously decided that four sections of the Bill go beyond the powers of the Scottish Parliament. This blog explains the background to the case, what the judges said and what could happen next.
What is the UNCRC Bill?
The Scottish Parliament passed the UNCRC (Incorporation) (Scotland) Bill unanimously on 16th March 2021. It seeks to 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 did the Bill end up in the Supreme Court?
The Scottish Parliament has limited powers. This means there are some topics it can’t make laws about. These are known as “reserved matters” and include the constitution and related power of the UK Parliament to make laws for Scotland. If the Scottish Parliament appears to go beyond its powers, this can be challenged in the UK Supreme Court. This is a key part of devolution.
Shortly after the Bill was passed, the UK Government raised concerns that parts of the Bill exceeded the powers of the Scottish Parliament. It sent the case to the UK Supreme Court which held a hearing on 28 – 29th June 2021. You can read more about the hearing here.
What did the Supreme Court decide?
The judges unanimously decided that four sections of the Bill go beyond the powers of the Scottish Parliament. Their decision focused solely on technical matters. They did not object to the intention behind the Bill or the Scottish Parliament’s ability to incorporate the UNCRC – so long as it stayed within its powers:
“No-one disputes the right of the Scottish Parliament to regard the UNCRC as an important convention and to give effect to it, provided that it does so within the limits of its legislative competence.”
In reaching their judgment, the judges looked at four sections of the Bill:
1. Definition of public authority (Section 6)
This section looks at “who” needs to follow the new law. The Supreme Court said it was drafted very broadly, meaning that it could apply to UK authorities acting in reserved areas. The judges said it was impossible to interpret the section in any other way. Accordingly, it went beyond the powers of the Scottish Parliament.
2. Interpretation (Section 19)
This section looks at how laws should be interpreted to make sure they respect children’s human rights. The judges said this section would give Scottish courts the power to interpret UK laws in ways the UK Parliament didn’t originally intend. The judges said this would affect the powers of the UK Parliament to make laws for Scotland as it could change their meaning.
3. Strike down powers (Section 20)
This section gives Scottish courts the power to strike down certain laws that don’t comply with children’s rights. Striking down a law means it would cease to have effect. The Supreme Court said these powers could be used on laws passed by the UK Parliament. They said this would clearly affect the powers of the UK Parliament to make laws for Scotland.
4. Incompatibility declarators (Section 21)
This section allows Scottish courts to make a declaration if a certain law doesn’t comply with children’s rights. This declaration wouldn’t remove the law from the statute book – it would stay in force but it might encourage the government to amend it. The Supreme Court said these powers could be used on laws passed by the UK Parliament. Again, they said this would affect the powers of the UK Parliament to make laws for Scotland.
What will happen next?
The judges said that the UNCRC Bill should return to the Scottish Parliament so that MSPs can address their concerns. The Bill cannot be sent for Royal Assent until it is amended, so the Scottish Government and Scottish Parliament will need to act quickly to prevent further delay.
That said, the vast majority of work needed to progress UNCRC implementation can and must continue whilst these technical issues are addressed. Together is already supporting Scottish Government with a phased approach to producing guidance that will support everyone in Scotland progress children’s rights.
Once the Bill is amended and Royal Assent is given, the Bill will automatically enter into force six months later. Scottish Government can choose to commence the Bill even sooner than six months. 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.
For more information
Read the full judgment here.
Over 65 members of Together sent a joint letter to the Deputy First Minister and the Minister for Children and Young People asking Scottish Government to work at pace to address the concerns expressed by the UK Supreme Court. We have received a response to our letter, which says Scottish Government remains committed to the incorporation of the UNCRC to the maximum extent possible as soon as practicable.
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