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The Supreme Court’s ruling that parts of Scottish legislation aimed at enshrining children’s rights are outside Holyrood’s competence highlights the “weakness” of the devolution settlement, John Swinney has said.
Scotland’s Deputy First Minister spoke out after judges at the UK Supreme Court in London ruled against Scottish ministers on two Bills.
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
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill sought to enshrine the protections on children’s rights into Scots law, while a similar piece of legislation – also passed unanimously by MSPs – was brought in to incorporate the European Charter of Local Self-Government.
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”.
However, Mr Swinney said the unanimous ruling from the Supreme Court made “crystal clear” that “the devolution settlement does not give Scotland the powers it needs”.
“While we fully respect the court’s judgment, it lays bare the weakness of, and the limits in, the devolution settlement,” he said.
“The ruling means it is outwith the power of the Scottish Parliament to pass legislation it considers necessary to fully ensure the rights of Scotland’s children are protected.
“The UNCRC Bill was created to deliver a revolution in children’s rights, making sure children and young people are involved in decisions that affect their lives. The Bill was backed unanimously by the Scottish Parliament and celebrated as a landmark by campaigners across the country.”
He added that the European Charter of Local Self-Government Bill – which had been introduced by former Green MSP Andy Wightman – was supported by councils as it “strengthens local government by incorporating the Charter into Scots law”.
The Deputy First Minister, who will give a statement to Holyrood on the ruling later on Wednesday, said the judgment will “require careful consideration”.
Taking to Twitter, First Minister Nicola Sturgeon said the ruling will “leave us unable to fully protect children’s rights, even in devolved areas”.
“If our Parliament was independent, no such restriction would apply.”
But the Scottish Conservatives accused SNP ministers of having “shamefully used children’s rights to play nationalist games”.
Speaking about the legislation on incorporating the UN Convention on Children’s Rights, constitution spokesman Donald Cameron said: “There was never any dispute over the substance of the policy, only the legality of parts of the Bill.
“The Scottish Conservatives supported this legislation from the outset whilst pointing out the legal problems.
“But the SNP sought to politicise it from the very beginning. They cynically engineered and manipulated the timing of the Bill to facilitate a pre-election stunt where they provoked a grievance with the UK Government.”
The Conservative MSP also argued that the “instant response” of the Deputy First Minister “was to make it all about nationalism, instead of focusing on children’s rights”.
“The SNP’s disgraceful approach has delayed a Bill on children’s rights that every party in the Scottish Parliament supported,” he said.
“We hope they will now hastily apologise for doing so and make the necessary changes immediately so that this legislation, that all MSPs support, can be passed.”
Scotland’s Children and Young People’s Commissioner, Bruce Adamson, said the Scottish Government’s commitment to protecting children must not be dampened by the ruling.
“The Supreme Court has today clarified the limits of the powers of the Scottish Parliament, but this must not limit the commitment made by the Scottish Government to take a maximalist approach to the incorporation of children’s rights as far as devolution allows,” he said.
— Alison Evison 🧡 (@AlisonEvison) October 6, 2021
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.”