Deputy First Minister gives update on UNCRC incorporation

On 24th May 2022, the Deputy First Minister made a statement to the Scottish Parliament about next steps on the UNCRC (Incorporation) (Scotland) Bill. The statement was to update the Scottish Parliament on the work done by Scottish Government in the eight months since the UK Supreme Court issued its judgment.  The Deputy First Minister gave MSPs an update on discussions with the UK Government, changes that need to be made to the Bill to address the judgment, and plans for further consultation with children, young people and organisations.

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.

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 Bill to the UK Supreme Court. In October 2021, the Supreme Court judges decided that four sections of the Bill went beyond the powers of the Scottish Parliament. They said the Bill could not become a law unless and until these sections were changed. You can read more about this here.

What steps have been taken since the judgment?

The UK Supreme Court issued its judgment eight months ago.

The Deputy First Minister said he had approached the UK Government about plans to address the court’s concerns. On 1st February 2022, he wrote to the Secretary of State for Scotland (a representative of the UK Government). In this letter, he said he wanted to find a way for the Bill to become a law without needing to change what it says. However, the Secretary of State replied a week later to say this would not be possible as it would mean changing the powers of the Scottish Parliament.

Today’s statement by the Deputy First Minister is the most detailed update since this exchange.

What changes are needed to the Bill?

On 24th May 2022, the Deputy First Minister said the Scottish Government is looking at the changes that need to be made to the Bill to address the Supreme Court judgment.  These changes will be need to be brought as “amendments” to the Bill so it can then go through a “reconsideration stage” in the Scottish Parliament. This will mean MSPs will vote on the small changes to the Bill and not the entirety of the Bill.

The Deputy First Minister said four sections will need to be changed:

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 too broadly and might mean that it applied to UK authorities – not just Scottish ones.

The Deputy First Minister said that this section would be changed so that it was clear it only applied to Scottish authorities acting in devolved areas. He said it would also be changed so that public authorities wouldn’t be found to have broken the new law, if an existing law meant they couldn’t respect children’s rights in this area. This is the same approach as the one taken by the Human Rights Act 1998.

2. Court powers (Sections 19, 20 and 21)

These sections look at what Scottish courts can do to make sure the new law is followed. Section 19 looks at how laws should be interpreted. Section 20 gives the Scottish courts power to strike down certain laws that don’t comply with children’s rights while section 21 allows Scottish courts to make a declaration if a certain law doesn’t comply with children’s rights.

The Deputy First Minister said that each of these sections would be changed to make it clear they only applied to laws that were originally passed by the Scottish Parliament – rather than laws passed by the UK Parliament.

It’s important to note that the above change is only about the powers of the Scottish courts. It would not affect the powers of the Scottish Parliament or Scottish Government that are set out in other parts of the Bill. For example, the Scottish Government will have the power to consider whether a law originally passed by the UK Parliament complies with children’s rights and make a report to the Scottish Parliament about this.

What happens next?

The Scottish Government has not produced a timeline for the reconsideration stage in the Scottish Parliament. It says that work to implement the UNCRC can – and is – continuing while technical issues with the Bill are resolved.

Meanwhile, the Deputy First Minister said the Scottish Government wants to talk to children, young people and organisations who have been campaigning passionately for incorporation. There will be a three-week targeted consultation which aims to let people know about the changes and why the Scottish Government thinks these need to be made. The Scottish Government also wants to hear any concerns that children, young people and organisations have so that these can be thought about during the reconsideration stage.

The Deputy First Minister said that while the Scottish Government wants to work at pace to make these amendments, sufficient time needs to be given to Parliamentary scrutiny. This is important as a Bill approved after reconsideration is again open to legal challenge in the same way as it was after it was first passed.

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. We will shortly be organising a member event to discuss the proposals so that we can share these views with Scottish Government to inform next steps.

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