UNCRC in Scotland: Supreme Court upholds UK Government's challenge to Scottish Parliament's powers

On Wednesday, the Supreme Court held that provisions within the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill ("the UNCRC Bill") are outwith the competence of the Scottish Parliament and accordingly cannot become law.

On 16 March 2021, the Scottish Parliament unanimously passed the UNCRC Bill, which incorporates the United Nations Convention of the Rights of the Child ("UNCRC") into Scots law. According to the Scottish Government, which introduced the Bill, its aims are to ensure that:

• children’s rights are respected and protected in the law in Scotland, and,
• public authorities are legally required to respect and protect children’s rights in all the work that they do.

However, the UK Government referred the question of the UNCRC Bill's legislative competence (i.e. of whether the Scottish Parliament is able to legislate as provided for in the UNCRC Bill) to the UK Supreme Court.

Issues of legislative competence

The UK Government did not take issue with the Scottish Parliament's decision to incorporate the Convention into Scots law but expressed concerns about a number of provisions within the Bill. 

Following devolution, the UK Parliament continues to have unrestricted powers to legislate for Scotland in all areas, whether reserved or devolved. The Scottish Parliament cannot pass any laws which affect the UK Parliament's power to legislate for Scotland. Any provision which seeks to do so falls outwith the legislative competence of the Scottish Parliament.

The Supreme Court held that three provisions of the UNCRC Bill affect the UK Parliament's ability to legislate for Scotland and therefore cannot become law:

• The first relates to the interpretation of legislation enacted by the UK Parliament in areas where the Scottish Parliament also has the power to legislate. It provides that "so far as possible to do so" an Act of the UK Parliament "must be read and given effect in a way which is compatible with" the UNCRC. The Court held that, if enacted, this provision may require the courts to modify the meaning and effect of legislation enacted by the UK Parliament and as a result would place a restriction on its legislative power.
  
  
• The second concerns the power to 'strike down' provisions of Acts of the UK Parliament that are incompatible with the UNCRC, provided they were passed before the relevant section of the UNCRC Bill comes into force and relate to matters on which the Scottish Parliament can also legislate. It provides that a court "may make a declarator stating that the provision ceases to be law" to the extent to which it is incompatible with the UNCRC. The Court held that making the validity of Acts of the UK Parliament conditional on compatibility with the UNCRC would interfere with the UK Parliament's power to make laws for Scotland.
  
  
• The third relates to the ability to declare provisions of the UK Parliament incompatible with the UNCRC, provided they were enacted after the relevant section of the UNCRC Bill came into force and concern matters on which the Scottish Parliament can also legislate. This provision would entitle the Courts to issue an incompatibility declarator but would not affect the validity, continuing operation or enforcement of the provision subject to the declarator. The Court held that this provision would affect the UK Parliament's powers to legislate as it would put pressure on the UK Parliament to do so in a way which would avoid such a declarator or to amend or repeal provisions after such a declarator had been made.

The Court also considered the legality of section 6 of the UNCRC Bill, which would make it unlawful for any public authority, carrying out any function, to act in a way which is incompatible with the UNCRC.

It was accepted by the Scottish Government that this provision is, on its face, outwith the powers of the Scottish Parliament. However, the Scottish Government argued that the provision could be interpreted by the Courts in such a way as to make it compatible with the powers Scottish Parliament. The Court determined that it should not be left to the courts to impose qualifications upon the provision on a case-by-case basis. Accordingly, this provision was also held to be beyond the powers of the Scottish Parliament.

What happens next?

As a result of the Court's decision, the UNCRC Bill will now be sent back to the Scottish Parliament for the issues to be "reconsidered". In effect, the Scottish Parliament must now amend or abandon the provisions which the Supreme Court has judged to be outwith its competence before the UNCRC Bill can be enacted.

John Swinney, Scotland's Deputy First Minister, has confirmed that the Scottish Government remains committed to incorporating the United Nations Convention of the Rights of the Child (UNCRC) into domestic law to the maximum extent possible.

It is likely that it will take a further six months for the UNCRC Bill to be enacted as a result of the reconsideration process, subject to there being no further challenges by the UK Government. The provisions within the Bill will come into force six months after the Bill receives Royal Assent. Therefore, organisations which expect to be impacted by the incorporation of the UNCRC into Scots law are likely to have a further year to prepare.

Our colleagues in the Personal and Family team at Brodies previously discussed its potential impact in the area of family law here.

Brodies colleagues have also discussed its potential impact in the third sector, local government, and in central government, regulators and public bodies at webinars which are available to watch now. 

To discuss further, please contact Christine O'Neill KC, Jackie McGuire or your usual Brodies contact.