UK Government is accused of political ‘grandstanding’ over children's bill

Aoife Nolan, professor of international human rights law at Nottingham University, said it was “depressing” moves by Scottish Secretary Alister Jack to challenge a bill incorporating the United Nations Convention on the Rights of the Child (UNCRC) into law, as it appeared to be more about tensions over devolution and possible Scottish independence.

She called on the UK Government to follow Scotland’s lead rather than seeking to “undermine” efforts to ensure greater protection for children.

It comes as Deputy First Minister John Swinney will today warn the UK Government to “see you in court” if it attempts to block the landmark ­legislation.

Addressing the SNP campaign conference, he will say: “Not a single voice was raised against the bill. Not a single voice that is, other than the UK Government. They have claimed that we are going beyond our devolved powers.

“They want to block the bill from anything the UK Government does here in Scotland. They even want to block it from the key legislation that underpins our health service, our schools, our social work services. That is not just morally repugnant – it is deeply menacing.”

Jack announced last week he may intervene in the legislation – as well as another bill on local self-government – which were passed unanimously by MSPs.

However Nolan said: “The UNCRC is the international gold standard in terms of children’s rights.

“The UK has volunteered to be bound by it. Rather than seeking to undermine Scotland’s efforts to ­ensure greater protection for its ­children, Westminster should be ­following Scotland’s lead.”

Nolan was a member of the Scottish Government’s Children’s Rights Working Group, but it did not have any role in drafting the UNCRC bill.

She said: “All children in the UK would benefit from the much greater rights protection that would result from incorporating the UNCRC into domestic law.

“We all know that children have been hit extremely hard by Covid-19.

“This makes it especially depressing to see children and their rights being the subject of political grandstanding – grandstanding that seems to be about tensions around the ­devolution settlement and possible Scottish ­independence and nothing to do with protection of child rights.”

Jack said he would use the four-week period from the passage of a bill in Holyrood until it receives royal assent to decide whether it should be blocked or referred to the Supreme Court.

In a letter to Swinney, he said the concerns with the bill were not around policy, but that it could place legal obligations on UK Government ministers in reserved areas.

However Dr Katie Boyle, associate professor in international human rights law at Stirling University, argued the bill “strikes a delicate balance” between going as far as possible within devolved competence to incorporate UNCRC into devolved domestic law, while not encroaching on reserved areas.

She said: “For example, the bill incorporates a redacted version of the UNCRC to ensure that it only applies in devolved areas and explicitly limits remedies to areas within Scotland’s devolved competence.

“Nonetheless, the UK Government has indicated a number of concerns, including that the UK Parliament’s power to make laws for Scotland would be affected, contrary to Section 28(7) of the Scotland Act 1998.

“This is not the case. The bill will allow courts to interpret UK laws in accordance with UNCRC, it also allows the court to strike down or declare incompatible UK laws that contravene the UNCRC.

“However, this only applies to laws passed by the UK Parliament within devolved areas and before the UNCRC bill was passed.”

Boyle said there is nothing in the bill which prohibits the UK Parliament passing law in either reserved or devolved areas, adding “it can ­expressly contravene the UNCRC if it so chooses”.

She said: “In those circumstances the only remedy available to the court is to declare the UK Act incompatible with the UNCRC – this has no legal effect on the UK legislation continuing to be in force.

“Whilst it is important that a breadth of constitutional expertise continues to inform how best to strike a balance in devolved incorporation of international human rights, it seems on this occasion the UK Government’s concerns are addressed by constitutional safeguards already contained in the bill itself. Indeed, this derails the focus from the very real concerns that the UK Government should be following Scotland’s lead and closing the accountability gap in the protection of children’s rights across both reserved and devolved areas across the UK.”

Dr Nick McKerrell, a senior lecturer in law at Glasgow Caledonian University, said the argument being put forward by the UK Government was that the bill is currently too broad and fails to differentiate between legislation from the Scottish Parliament and legislation from Westminster.

He added: “The coincidence is pretty great that it is during an election and obviously there is issues of the UK Government wanting to make it clear they still have powers for some aspects of Scottish life. I think it is making that point.

“You could also argue the Scottish Parliament is pushing the limits of asserting its power on these issues as well, but it was unanimously agreed, so the Scottish Parliament is comfortable with it.

“So perhaps it is the UK Government making it seem more commonplace, if you like, for it to have a say on Scottish legislation which it has not done in the past.”

Asked to respond to the criticisms, the Scotland Office said it did not have any further comment to add to the statement made by Jack last week.