Tories are ‘picking fight’ on child rights to prove UK ‘superiority’, expert says

Durham University expert Professor Aileen McHarg told The National that Westminster’s move is about asserting the “superiority” of the UK Government over devolved legislatures.

Boris Johnson’s administration says it has “concerns” that two bills passed by MSPs go beyond Holyrood’s powers. But McHarg says the Tory team was under “no obligation” to take these concerns to the highest court in the land.

She said: “This seems much more about asserting the superior status of the UK Parliament, its untouchability by the devolved parliaments.”

The pre-election move – described as “jaw-dropping” by First Minister Nicola Sturgeon – was announced on Monday and could see MSPs ordered to make changes to bills on child rights and local democracy.

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Those pieces of legislation – which embed the United Nations Convention of the Rights of the Child (UNCRC) and European Charter of Local Self-Government into Scots law – were both passed unanimously by the Scottish Parliament after both Holyrood and Scottish Government lawyers found they were within the scope of Holyrood’s powers.

But Westminster says that’s wrong and wants the Supreme Court to rule that some aspects of the bills are outwith the Scottish Parliament’s remit because they’d limit what the UK Government can do. In a letter raising the prospect of legal challenge last month, Scotland Secretary Alister Jack said the bills include “provision that constrains the UK Parliament’s ability to make laws for Scotland”.

Monday’s news sparked widespread concern amongst Scottish politicians, with Ross Greer (below) of the Greens accusing the Tory administration of “doing things which violate the rights of children and young people”.

The move falls within the four-week period allowed to UK ministers for challenging devolved legislation under the Scotland Act. It is just the second time such an action has been taken in the history of devolution. The first happened in 2018, when UK ministers asked the court to rule on the competence of the Continuity Bill, which aimed to retain existing EU law in Scotland after Brexit.

The court rejected UK Government claims that it was entirely beyond Holyrood’s capacity – but that one section was an overstep. Changes made by the UK Government before the court’s ruling was made also meant more than 20 other provisions could not stand.

McHarg, a professor of public law and human rights, has written extensively on constitutional and administrative law in the UK and Scotland. She says “devolution legislation, the scope of devolved powers is notoriously complex” and it will be “interesting to see” whether the UK Government mounts a “general attack” and again tries to have the entirety of the bills struck down.

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On whether or not Westminster has a duty to refer concerns to the Supreme Court, she said: “They clearly don’t. It’s clearly a power, not a duty. They have made the decision. I’m surprised they made the referral. They are not obliged to do so even if they have concerns.

“If they have a concern they can challenge post-enactment or they can wait until an actual dispute arises. There is no certainty that there would actually be any problem in practice.”

She went on: “The context is the increased assertiveness of the UK Government in devolved areas. In the past they may have been more inclined to say ‘let’s not pick a fight’. They are much more willing to pick fights to try to keep Holyrood in particular in its place.”

The UK Government said: “As with every bill passed by the Scottish Parliament, there is a four-week period where the UK Government Law Officers can exercise their discretionary powers under Section 33 of the Scotland Act 1998 to refer the matter to the Supreme Court.

“For the UNCRC Bill, that four-week period ended on April 12, 2021. This is the same day the UK Government filed papers with the Supreme Court.

“The UK Government Law Officers’ concerns are not about the substance of the legislation, rather whether parts are outwith the legislative competence of the Scottish Parliament.”

A Scottish Parliament spokesperson commented: “The parliament considers bills before it informed by statements on competence from both the member in charge and the Presiding Officer. However, only the courts can determine whether the provisions of any bill passed by the parliament are competent. As certain provisions of the bills have now been referred to the Supreme Court for consideration it would not be appropriate to comment further at this time.”