Increased Rights for Scottish Children Blocked by Supreme Court Ruling
6th Oct 2021
The Supreme Court has today (Wednesday 6th 2021) handed down judgment that the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was unlawfully made. The Supreme Court rules that the Scottish Parliament did not have the power to pass such legislation.
What is the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill?
This landmark children’s rights bill, if not temporarily blocked by the UK Government’s Supreme Court case, would have allowed children and young people to seek redress (to put right a wrong action) in Scottish courts for breaches to their rights under the United Nations Convention of the Rights of the Child (UNCRC).
For Scotland’s children and young people, the UK Government’s Supreme Court win has also temporarily prevented there from being a new duty for public authorities to act in line with the UNCRC.
What rights are covered under the UNCRC?
Every child has 54 articles under the Convention. Each article in the UNCRC is fundamental in empowering and protecting young people. These rights protect children and young people’s civic rights, freedoms, family environment, alternative care, welfare, and many more.
Nearly every country in the world has signed the UNCRC. However, signing the UNCRC is not enough. Extra steps must be taken by nations to bring the Convention into domestic law and policy.
Why has the UNCRC Bill been blocked?
During the two-day Supreme Court hearing, senior barristers and solicitor advocates clashed over many elements of Scotland’s UNCRC Bill.
Four provisions of the UNCRC bill were judged to have been outside the powers held by the Scottish Parliament. The fact that section 28(7) of the Scotland Act 1998 would have been modified by the bill was key in the judgment of all four provisions and the final decision that the UNCRC Bill was unlawfully made.
What is Section 28(7) of the Scotland Act 1998?
The Scotland Act 1998 was introduced to allow the Scottish devolution referendum in 1997. In this referendum, the people of Scotland voted to have their own parliament in Edinburgh.
Section 28(7) of the Scotland Act 1998 explicitly tells us that the UK Parliament still has unqualified legislative power in Scotland. This means that:
“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
In other words, this specific declaration in Section 28(7) makes clear that Westminster retains absolute parliamentary sovereignty over Holyrood (Scottish Parliament).
The Supreme Court found that because the provisions in question would modify section 28(7), it would affect the UK Parliament’s ability to make laws for Scotland.
What else in the bill was found to be outside the legislative power of Scottish Parliament?
It was also found by the Supreme Court that the Scottish Government’s decision to write the bill to be as broad as possible to ensure the reach of children’s rights could be applied in more tribunals was unlawful. This is because, according to the Supreme Court, the ordinary principle is that courts cannot question an Act of Parliament.
In addition, the Supreme Court submitted that if an Act passed by the Scottish Parliament says one thing but can be interpreted by the courts as different, then this becomes difficult in practice for the courts.
What does this mean for children and young people?
NYAS shares the disappointment of Scottish children’s rights campaigners that Scotland has been temporarily set back from becoming the first devolved country in the world to fully implement the UNCRC.
The UNCRC Bill will now return to the Scottish Parliament so the Supreme Court’s concerns can receive further consideration. Hopefully, we will see the revised bill make its way through the Scottish Parliament again soon so children’s rights across Scotland can be upheld through the UNCRC.
If this was a battle over devolution powers, children’s rights have been caught up in the middle of it.