THE Scottish Government has lobbied UK ministers with five options to rewrite the Scotland Act in a bid to incorporate the UN Convention on the Rights of the Child (UNCRC) into Scots law.
The legislation was deemed outwith the scope of devolution by the UK Supreme Court after a challenge by the UK Government. push through legislation deemed incompetent by the Supreme Court.
SNP ministers have tabled five proposals to the UK Government that would amend Scotland’s devolution agreement in order to ensure the legislation as it stands could become legally competent, according to the Herald on Sunday.
Three of the options are said to include a Section 30 order, which was the amendment to the Scotland Act used for 2014's independence referendum – while two proposals would put in place a Section 104 order in the UK Parliament.
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A Section 30 order can be used to increase or diminish Holyrood’s legislative authority. The alteration would require approval by the House of Commons, the House of Lords and the Scottish Parliament before becoming law.
In October 2021, Supreme Court justices found that four provisions of the UNCRC bill, which was unanimously approved by MSPs in March 2021, were outside Holyrood’s legislative competence.
The bill was intended to “extend and enhance human rights protections” in Scotland and to “empower” young people to defend their own rights.
It would give Scottish courts the ability to strike down laws that harmed children’s rights and promised to hold public bodies accountable to young people.
But it was ruled that the bill in the form it was passed would give Scottish ministers power over reserved policy areas and was therefore not acceptable in its current form.
Deputy First Minister John Swinney has previously told the Scotland Office the “disappointment” over the court’s ruling from October 2021 was “felt acutely across Scotland, especially by our children and young people”.
He said civil servants were working on ways to change the bill to make it work within Holyrood’s powers but told Scotland Secretary Alister Jack that the UK Government should change its position to allow the bill to come into force “as originally passed by Scottish Parliament”.
One option now proposed by SNP ministers would use a Section 30 order to give Holyrood the same competence over the entire devolved set of laws, whether Scottish Parliament legislation or UK Parliament acts. The move would allow the Scottish Government’s children’s rights legislation to apply to any UK Parliament legislation in a devolved area.
Another option tabled by the Scottish Government would involve using a Section 30 order to allow Scottish courts to enforce UN human rights treaties in any legislation in devolved areas including UK Parliament acts, while another option would specify the courts could enforce only the Convention on the Right of a Child.
It is understood that SNP ministers have also tabled two Section 104 proposals to the UK Government. Section 104 orders are required in the UK Parliament when changes are needed to laws in England, Wales or Northern Ireland as a consequence of Holyrood legislation.
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One of the Section 104 order proposals would essentially remove UK acts from the children’s rights bill at reconsideration stage. The UK Government would then be able to re-introduce them once the Scottish Government legislation has been passed.
The second Section 104 option would list UK Parliament acts that would become subject to the Scottish Government legislation, such as UK education and children’s legislation.
A Scottish Government spokesperson said: “We remain committed to the incorporation into Scots law of the UNCRC to the maximum extent possible as soon as practicable.
“It is vital that we work through the complex issues raised by the Supreme Court judgment to ensure that incorporation can happen as quickly as possible with confidence that any amendments to the Bill do not attract further challenge. The majority of work in relation to implementation of the UNCRC is continuing.
“One aspect which we have been pursuing is engagement with the UK Government to explore whether powers under the devolution settlement can be used to give the UNCRC Bill greater effect than is possible under the Scottish Parliament’s current powers.”
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