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Work on a Bill to incorporate a UN treaty on children’s rights into Scots law will continue despite the original being sent back to Holyrood by the UK Supreme Court Deputy First Minister John Swinney has said.
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill passed unanimously earlier this year, but was referred by the UK Government to the country’s highest court in order to assess if the legislation was within the scope of the Scottish Parliament
In a judgment on Wednesday, Supreme Court justices insisted they did not take issue with the Scottish Parliament’s decision to incorporate these sets of standards – but that the manner in which the Bills had sought to do this “breaches the limitations imposed on the legislative competence of the Scottish Parliament by the Scotland Act”.
Judgment has been handed down this morning in the case of REFERENCE by the Attorney General and the Advocate General for Scotland 2021/0079 and 2021/0080 https://t.co/ZKnxrtSMSp pic.twitter.com/zEIlll9U59
— UK Supreme Court (@UKSupremeCourt) October 6, 2021
In a statement to Holyrood, the Deputy First Minister said: “There is no doubt that the implications of this judgment are significant, from a children’s rights perspective and in terms of this government and indeed this parliament’s aspiration for the country we want our children to grow up in.
“The Scottish Government remains absolutely committed to the incorporation of the UNCRC into Scots law to the maximum extent possible.
“We want to ensure that we pursue that policy in a way that can be enacted and therefore made real in practice.”
He added: “It is regrettable that this Bill has been delayed and will not now become law in the form which our parliament has agreed.”
Another Bill, which was also passed unanimously and sought to incorporate the European Charter of Local Self-Government, was also found not to be in the competence of the Scottish Parliament.
Originally introduced by former independent MSP Andy Wightman, Green MSP Mark Ruskell will now act as the lead member on the Bill.
Tory MSP Donald Cameron said his party warned that some parts of the Bill would be “legally problematic”.
“To their shame, the SNP did not listen and instead politicised this from the very beginning,” he said.
He added: “That political posturing has been comprehensively demolished by the definitive judgment of the Supreme Court today.”
When Tory MSP Meghan Gallacher accused the Deputy First Minister of stirring up “constitutional grievance”, Mr Swinney replied: “The straightforward way through this would have been for our Bill to get royal assent without objection from the UK law officers.
“It was supported by every single member in this parliament. Why on earth are the Conservatives objecting to the passage of legislation that they themselves supported?
“Do they not understand how absolutely ridiculous their argument is today?
“This parliament made its choices about how it wanted to deliver the maximum protection for children and young people in our country and the people who’ve got in the road of that, the people who’ve interrupted it, are the UK Government’s law officers.”
— COSLA (@COSLA) October 6, 2021
Children and Young People’s Commissioner Bruce Adamson said: “The last 18 months have shown just how urgent it is to strengthen rights protections for children.
“We will work with the Scottish Government and the Scottish Parliament in its role as a human rights guarantor to get this done as soon as possible.”
Alison Evison, president of local authority umbrella body Cosla, said: “We will now seek to work with the Scottish Parliament and the Scottish Government to ensure that all the work done around both Bills will not be lost.
“Obviously today’s judgment will require scrutiny and full consideration. Local government must have a meaningful role in whatever comes next and as a valued sphere in the governance of Scotland.”
However, Scottish Secretary Alister Jack welcomed the decision, saying it “provides vital legal clarity on these two Bills”.
“As set out in the Scotland Act 1998, the Scottish Parliament cannot legislate outwith its areas of competence,” he said.
“As we have been clear, our concerns were never to do with the policy of the Bills, but about whether they are within the legislative competence of the Scottish Parliament.
“We will continue to work collaboratively with the Scottish Government to address any competence concerns with future Scottish Parliament legislation.”