THE confirmation that the UK Government will refer concerns it has about specific provisions within the United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Bill to the Supreme Court has caused panic and confusion.
The First Minister tweeted that the decision by the UK Government is "politically catastrophic, but also morally repugnant".
Given the hard work, excitement and genuine desire of so many to ensure the rights of children are incorporated into Scots law, it is important to be clear on the extent of the legal challenge.
While this legal challenge may risk delaying the commencement of the bill, it is important to remember that Scotland is still on track to ensure the rights of children are incorporated into Scots law with breaches actionable in Scottish courts.
READ MORE: UK Government launches 'morally repugnant' challenge against Scottish children's legislation
The challenge by the UK Government focuses on the legislative competence of the Scottish Parliament. Under the Scotland Act 1998, the Scottish Parliament can only make laws that fall within "devolved" areas.
While the Scottish Parliament can legislate on education and health, it cannot legislate on matters reserved to Westminster – like immigration, for example. This means that Westminster can pass laws that impact Scotland in reserved areas, however, Scotland cannot pass laws that place legal obligations or restrictions on the UK Government.
The UK Government believes that very specific provisions contained within the incorporation bill are outwith the legislative competence of the Scottish Government because they place legal obligations on the UK Government in reserved areas. The UK Government believe that these provisions could result in Scottish courts being able to intervene on reserved Westminster legislation. It is important to emphasise that these very specific provisions are to be examined, not the substance or policy intentions of the bill. After all, the bill had overwhelming cross-party support and was unanimously passed by the Scottish Parliament.
Sections 4-6 and 19-21 of the bill were highlighted as areas of concern by the Scotland Secretary, Alister Jack, in a letter to the Deputy First Minister last month. These provisions, upon which it is anticipated the legal challenge is based, relate to the definition and duties of public authorities and the interpretation and compatibility of legislation, including UK laws.
There is concern that these provisions may allow the courts in Scotland to limit the legislation coming from Westminster thus placing additional legal obligations upon the UK Government and their departments.
READ MORE: Tories' Supreme Court challenge a 'jaw-dropping' assault on devolution
While it is perhaps understandable that at this time, politics is central to the discussion of this dispute between the UK and Scottish governments, particularly during an election campaign, it is important to remember that there is a limited window of around four weeks within which the UK Government law officers need to refer concerns about bills being outwith the legislative competence of the Scottish Parliament.
The frustration and concern felt by many about the potential for this legal action to delay the commencement of the bill is understandable. However, it is important to remember that these proceedings are a constitutional law issue and not one which seeks to remove Scotland’s desire to respect, protect and fulfil the rights of children.
Hopefully, this time will give us the opportunity to discuss and promote children’s rights with an even greater number of people across society and ensure increased awareness and impact when the bill does come into force.
Dr Tracy Kirk is a legal academic researching children and young people's rights
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