Scottish Parliament bid to enshrine children’s rights in law lacks ‘legislative competence’ – Supreme Court

Parts of two bills passed by the Scottish Parliament must receive “further consideration”, Supreme Court justices have ruled.

Judges said on Wednesday that sections of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill “would be outside the legislative competence of the Scottish Parliament”.

Lawyers representing the Attorney General and Advocate General for Scotland had asked Supreme Court judges to consider legal issues relating to the bills.

Judges were asked to consider whether the two bills could give Scottish courts “unparalleled” powers to strike down legislation from the UK Parliament.

They said the bills would return to the Scottish Parliament so issues could receive further consideration.

Five Supreme Court judges, who are based in London, had considered arguments at a hearing in June.

A barrister representing the Attorney General, and the Advocate General for Scotland, told the court that the case concerned “whether the Scottish Parliament has the legislative competence to subject acts of the UK Parliament with the need to comply with the UNCRC and to assign or delegate to the Scottish courts powers to strike down, rewrite or declare incompatible provisions of the acts of the sovereign UK Parliament”.

Sir James Eadie QC said: “Both bills, in slightly different ways, purport to bestow upon the Scottish courts extensive and, in part, unparalleled powers to interpret and to scrutinise the legality of primary legislation passed by the sovereign UK Parliament at Westminster.”

Judges were told that the UK Government had said its concerns were “not about the substance of the legislation” but whether the Scottish Parliament had the legal ability to pass the bills.

Judges said, in a summary of their ruling, that a section of the Scotland Act preserved the unqualified power of the UK Parliament to make laws for Scotland.

They concluded that three provisions of United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, and two provisions of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, would “fall outside the legislative competence of the Scottish Parliament”.

Judges heard that the Scottish Parliament had passed the bills in March.

“The bills are designed to give effect to two treaties to which the UK is a signatory: the United Nations Convention on the Rights of the Child (“the UNCRC”) and the European Charter of Local Self-Government (“the ECLSG”),” said one judge, Lord Reed, in a written ruling.

“The UNCRC was ratified by the UK in 1991.

“It is reflected in a number of provisions of domestic law, but has not been incorporated as a whole.

“The UNCRC Bill would incorporate a version of the UNCRC as scheduled to the bill.

“The ECLSG was ratified by the UK in 1998.

“It too is reflected in a number of provisions of domestic law, but has not been incorporated as a whole.

“The ECLSG bill would incorporate a version of the ECLSG as scheduled to the bill.”

Supreme Court judgment ‘lays bare’ weaknesses of devolution, says John Swinney

The Supreme Court’s ruling that parts of Scottish legislation aimed at enshrining children’s rights are outside Holyrood’s competence highlights the “weakness” of the devolution settlement, John Swinney has said.

Scotland’s Deputy First Minister spoke out after judges at the UK Supreme Court in London ruled against Scottish ministers on two Bills.

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill sought to enshrine the protections on children’s rights into Scots law, while a similar piece of legislation – also passed unanimously by MSPs – was brought in to incorporate the European Charter of Local Self-Government.

Supreme Court justices insisted they did not take issue with the Scottish Parliament’s decision to incorporate these sets of standards – but that the manner in which the Bills had sought to do this “breaches the limitations imposed on the legislative competence of the Scottish Parliament by the Scotland Act”.

However, Mr Swinney said the unanimous ruling from the Supreme Court made “crystal clear” that “the devolution settlement does not give Scotland the powers it needs”.

“While we fully respect the court’s judgment, it lays bare the weakness of, and the limits in, the devolution settlement,” he said.

“The ruling means it is outwith the power of the Scottish Parliament to pass legislation it considers necessary to fully ensure the rights of Scotland’s children are protected.

“The UNCRC Bill was created to deliver a revolution in children’s rights, making sure children and young people are involved in decisions that affect their lives. The Bill was backed unanimously by the Scottish Parliament and celebrated as a landmark by campaigners across the country.”

He added that the European Charter of Local Self-Government Bill – which had been introduced by former Green MSP Andy Wightman – was supported by councils as it “strengthens local government by incorporating the Charter into Scots law”.

The Deputy First Minister, who will give a statement to Holyrood on the ruling later on Wednesday, said the judgment will “require careful consideration”.

But the Scottish Conservatives accused SNP ministers of having “shamefully used children’s rights to play nationalist games”.

Speaking about the legislation on incorporating the UN Convention on Children’s Rights, constitution spokesman Donald Cameron said: “There was never any dispute over the substance of the policy, only the legality of parts of the Bill.

“The Scottish Conservatives supported this legislation from the outset whilst pointing out the legal problems.

“But the SNP sought to politicise it from the very beginning. They cynically engineered and manipulated the timing of the Bill to facilitate a pre-election stunt where they provoked a grievance with the UK Government.”

The Conservative MSP also argued that the “instant response” of the Deputy First Minister “was to make it all about nationalism, instead of focusing on children’s rights”.

“The SNP’s disgraceful approach has delayed a Bill on children’s rights that every party in the Scottish Parliament supported,” he said.

“We hope they will now hastily apologise for doing so and make the necessary changes immediately so that this legislation, that all MSPs support, can be passed.”

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