The Scottish Parliament's power to legislate for children's rights

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill ("the Bill") has been introduced to the Scottish Parliament. 

Our colleague, Sarah Lilley has blogged on the Bill's potential to impact on child law in Scotland.

The Bill is complex, and its potential applications wide-ranging. In this blog, we concentrate on the challenges associated with incorporating the United Nation Convention on the Rights of the Child and certain of its Optional Protocols ("the UNCRC") given the limitations that exist on the Scottish Parliament's powers.

We have previously discussed the choices facing the Scottish Government in deciding how to incorporate the UNCRC. The Scottish Government has elected to take a "maximalist" approach to incorporation, which it describes as providing for "maximum protection possible for children’s rights within the devolution settlement." This approach is not without its challenges.

Inability to limit its own competence

The Scottish Parliament's powers are limited by the Scotland Act 1998.

The Scottish Parliament is unable to legislate to limit its own legislative competence. The Scottish Government would prefer if the Scottish Parliament could require all legislation, past and future, to be compatible with the UNCRC, with the courts having the power to ‘strike down’ any incompatible provisions. However, the Scottish Government recognises that the Scottish Parliament cannot impose such a requirement upon itself. Therefore, the Bill provides for two different remedies in respect of legislation which is found by a court to be incompatible with the UNCRC, depending on when it is passed:

1. Legislation which pre-dates the Bill: Courts could declare that an incompatible provision ceases to be law.
   
2. Legislation which post-dates the Bill: Courts could declare that a provision was incompatible with the UNCRC, but in of itself, this would not affect the legal validity of that provision.
   

Provisions of the UNCRC relating to reserved matters

The Scottish Government has recognised that certain aspects of the UNCRC relate to reserved matters (those matters in respect of which only the Westminster Parliament can legislate). Accordingly the version of the UNCRC which the Bill would incorporate is not identical to the Treaty and Optional Protocols as drafted, with certain provisions being 'carved out' so as to bring, in the Scottish Government's view, the Bill within the Scottish Parliament's legislative competence. For example, the Bill does not incorporate Article 10(1) of the UNCRC, which provides for rights to family reunification because immigration and nationality are reserved matters.

Obligation on public authorities

The Bill seeks to make it generally unlawful for public authorities in Scotland to act in a way that is incompatible with the UNCRC ("the compatibility duty").

However, some public authorities in Scotland exercise reserved functions, and the Scottish Government recognises that "there will be circumstances in which the application of the compatibility duty would be beyond the legislative competence of the Scottish Parliament". They consider that applicability of the duty to a public authority's functions will fall to be analysed on a case-by-case basis.

Determining whether or not they require to act compatibly with the UNCRC when exercising particular functions may prove challenging for public authorities, and there is a risk that they are challenged about the way in which they have reached decisions or exercised their functions. 

Conclusion

On previous occasions, the Scottish Government has faced challenges to the competence of its legislation in relation to children, most notably in connection with the 'Named Persons' Scheme. It remains to be seen whether similar challenges will be forthcoming in relation to this Bill.

Even if such challenges are not forthcoming, the complex devolution settlement means that, if it is passed, the Scottish Government and other public authorities will require to give careful consideration to the Bill's provisions and their potential application to their respective functions.