Blocked Scottish children's rights bill returns with changes

The United Nations Convention on the Rights of the Child (UNCRC) Bill, which was found to be outside of the Scottish Parliament’s competence by the Supreme Court in October 2021, is set to go through Holyrood a second time with a number of changes.

The Attorney General, Shirley-Anne Somerville said, would not say if the UK Government was content with the amendments put forward ahead of its reintroduction. However, she insisted that Scottish ministers were content that it would fall within competence.

Opposition MSPs attacked the speed at which the Scottish Government had brought the legislation forward again, but Somerville insisted that ministers wanted to ensure “maximum coverage” of children’s rights.

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The Social Justice Secretary was moving a motion asking MSPs to reconsider the UNCRC Bill on Thursday.

MSPs, who agreed unanimously to reconsider the legislation, will debate the numerous amendments put forward by the Scottish Government at a later date. 

Scottish Labour MSP Martin Whitfield intervened during the Cabinet Secretary’s speech to suggest that in correspondence to the Holyrood committee “there’s an indication that perhaps the response from the UK Government was less than satisfactory”.

Whitfield (below) asked if Somerville would expand on what challenges she could potentially see forthcoming in regard to the amendments to the legislation.

“I hope the member will appreciate that the work that has gone on is legal advice, and it is important that I respect the confidentiality of legal advice not just to the Scottish Government but also of the office of the Advocate General,” she said.

“There have been numerous pieces of correspondence and work between officials on this. It is disappointing that we didn’t get to the point where the Office of the Advocate General, indeed representatives of the UK Government could say that they are content with the amendments that we propose to put forward.

“ I think that would have been the point that we would get to, so we are at a point that is suboptimal in this issue.

“But, we are content that certainly the amendments we are bringing forward are within competence on that.”

Earlier, Somerville said that the three key considerations for the Scottish Government in putting forward amendments were to protect children’s rights to the “maximum”, minimising the risk of another Supreme Court referral and to make the law as “accessible as possible”.

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“In balancing these I reached the consideration that the maximum effective coverage is for the compatibility duty to apply only when a public authority is delivering devolved functions conferred by or under acts of the Scottish Parliament or common law powers,” she said.

“This means that the duty will not apply when powers are delivered under acts of the UK Parliament even in devolved areas and even where the legislation requires or gives discretion to a local authority to act compatibly.”

During the debate, Scottish Tory MSP Roz McCall (below) claimed there had been a “little fiasco” over the legislation and said it showed a problem with the Scottish Government’s “inability to legislate”.

“It’s now been 912 days since the Scottish Parliament unanimously passed the UNCRC bill, a bill that was backed by the Scottish Conservatives who worked constructively and positively with parties across the chamber because we recognise the bill is far more important than any individual or party,” she said.

Adding that it had been 708 days since the Supreme Court ruling, McCall claimed that Scottish ministers had “deliberately provoked grievance” with the UK over the legislation.

In her closing arguments, Somerville said that ministers could have taken a faster route to bringing amendments forward that would have given “more coverage” of children’s rights, it would have left the legislation open to legal challenge and also made it “complicated and possibly unworkable”.

The UNCRC bill requires Scotland’s public authorities to protect children’s rights in their decision-making.

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It also allows for children, young people and their representatives to use the courts to enforce their rights.

However, as set out by Somerville, this will only be able to be imposed under devolved legislation, and not UK-wide reserved legislation, due to the UK Government's intervention. 

The Social Justice Secretary urged the UK Government to consider adopting the UN charter into UK-wide law, but told MSPs that from discussions with the Scottish Secretary, UK ministers appeared reluctant to do so, adding that it was “deeply disappointing”.