Westminster threatens to challenge Scottish UNCRC bill in Supreme Court

Alister Jack raised concerns that it encroaches on areas outwith the Scottish Parliament’s competency in a letter sent to Deputy First Minister John Swinney today.

Westminster has taken issue with some sections from the bill which seeks to enshrine the UN Convention on the Rights of the Child (UNCRC) into Scots Law.

The Secretary of State for Scotland warned that law officers were considering involving the Supreme Court after Swinney rejected requests to amend the bill, which was passed unanimously on March 16.

Children’s rights expert Dr Tracy Kirk said the bill would “transform the lives of children and their families across Scotland”, but the Tories in London say it appears to be “contrary to the devolution settlement”.

READ MORE: Dr Tracy Kirk: Significance of Scots children’s rights bill can’t be overstated

Jack said sending the bill to the Supreme Court was a “last resort”, but said the bill should not limit Westminster’s ability to legislate for Scotland.

He had first asked for changes to be made in a letter sent on March 4, but the Scottish Government made no moves to do so.

If law officers decide to send the bill to the Supreme Court then it will not receive Royal Assent or pass into law until after the UK’s top judges have considered it. They could decide to either allow the bill to pass, or return it to MSPs to be altered.

The UNCRC bill obliges public authorities to respect children's rights and comply with its requirements. However, there was controversy around sections which refer to it applying to Westminster legislation as well as Holyrood’s.

In a letter sent to Swinney today, the Secretary of State for Scotland said: “Unfortunately, the legislative competence of specific provisions in the UNCRC bill is in doubt.

“The UK Government has concerns with section 6 of the bill relating to the legal obligations it could be seen to place on UK Government ministers in reserved areas.

“The UK Government also has concerns with regards to sections 19-21 of the bill. Our concern is that these sections of the bill would affect the UK Parliament in its power to make laws for Scotland, which would be contrary to the devolution settlement.

“The UK Government respects the Scottish Government’s right to legislate on this matter in line with its responsibilities under the devolution settlement. What it cannot do is seek to make provision that constrains the UK Parliament’s ability to make laws for Scotland.”

The UK Supreme Court in Parliament Square, Westminster

He went on: “The Law Officers have only used [the] power once before to make a referral to the Supreme Court on legislative competence grounds and we consider using it only as a matter of last resort. The final decisions will be communicated to the Presiding Officer in the normal way.

“While the UK Government and Scottish Government have different views on the benefits of incorporating conventions into statute, as set out above we respect Scottish Parliament's ability to legislate on this in devolved areas.

“However, doubt about the competence of specific provisions in the bill serves no one.”

Swinney made reference to Jack’s initial request to change the bill while it was being debated in Holyrood’s chamber on March 16.

He said: “I told the Secretary of State for Scotland that we would do no such thing.

“The Secretary of State for Scotland thinks that he can write menacing letters to the Deputy First Minister of Scotland to seek to exempt key pieces of legislation that are integral to this Parliament’s legislative competence.”

READ MORE: Bill that puts rights of child to law could be watershed moment in Scotland's history

He added: “That demonstrates that a very orchestrated and sustained assault is under way on the Parliament’s powers. I am not surprised that that is being cooked up in the Secretary of State’s office.”

Jack’s letter today refutes those allegations, saying it is “in no way the case”.

He goes on: “Scotland has two governments and parliaments, as voted for in the 1997 devolution referendum and reaffirmed in the 2014 referendum, and it is important legislation is clear on the roles and relationships between the two.”

Jack’s letter also raises similar concerns around the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, which is also awaiting Royal Assent.

The top Tory said that sections 4 and 5 of the latter bill “would also affect the power of the UK Parliament to make laws for Scotland”.

He also said section 14(2) of the continuity act should be “read down as only applying to Ministers of the Crown when they are making policy which does not relate to reserved matters”.