Andrew Tickell: Lord Reed's judgment guts children's rights efforts

The Scottish Government’s inability to introduce proper human rights legislation under the Scotland Act ought to be an advert for why devolution isn’t working – but the progressive sponsors and supporters of these laws don’t want to say so out loud.

Half a loaf may be better than no loaf at all – but when a questionable decision of the courts has left you with mostly crust and ­little crumb, I can’t understand the benefits of pretending your setback is ­superficial. We deserve to be able to understand why this has happened – but it’s a complex story and difficult to tell well.

Like many news stories underpinned by the devolution settlement, this tale gets ­legalistic very quickly. The inspiration for the UNCRC Bill came from the Human Rights Act. The HRA brought the ­European Convention on Human Rights home. It told British courts to interpret legislation in a way which was consistent with these ­fundamental rights if possible. It said it was unlawful for public authorities – like the police or NHS hospitals – not to uphold them.

The devolution settlement went still ­further, giving judges strong powers of constitutional review over Holyrood ­legislation. Whether or not its laws violate civil liberties, Westminster can hide behind parliamentary sovereignty. If an Act of the Scottish Parliament falls short, the courts can strike it down.

Holyrood essentially tried to extend all these rules to the United Nations Convention on the Rights of the Child. Adopted in 1989, the Convention recognises the ­autonomy of young people, while making accommodations for their vulnerabilities. The bill aimed to bring UNCRC rights home too – allowing children and young people to challenge laws in Scottish courts that they feel fall short of international standards.

To give these rights maximum reach and the simplest application for ­potential ­litigants, the Scottish Government ­proposed that its principles would apply to any ­legislation falling within devolved ­competence, leaving it to the courts to ­decide which public authorities the ­duties should attach to. The second part of this plan was a serious miscalculation – but few legal observers thought the first proposal was problematic. If MSPs can amend any legislation falling within their devolved powers, why shouldn’t they be able to subject these laws to children’s rights, or other human rights?

Having been passed unanimously by MSPs, the bill fell immediately into ­legal difficulty after it was referred to the ­Supreme Court by the UK ­Government. They adopted a many-pronged line of ­attack on the bill – but Lord Reed’s ­judgment went much further than they could have hoped for.

Section 28(7) of the Scotland Act reads like a bland restatement of the principle that power devolved is power retained. “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland,” it says. But in this apparently unremarkable paragraph, Lord Reed discovered remarkable new ­restrictions on Holyrood’s powers.

This provision, he held, doesn’t just repeat familiar nostrums about parliamentary sovereignty but instead protects Westminster’s “unqualified power to make laws for Scotland”. Emphasis on “unqualified” – a word which doesn’t actually feature in the legislation. The upshot was that while Holyrood could subject its own legislation to children’s rights – anything passed by Westminster couldn’t be touched.

In his judgment, Lord Reed suggested that the role of the courts was to give the Scotland Act “a consistent and predictable interpretation, so that the Scottish Parliament has a coherent, stable and workable system within which to exercise its legislative power”. What his judgment achieved is the precise opposite of this. In time, I reckon this decision will go down as one of the worst devolution cases ­decided by the courts – but for the ­moment, we’re stuck with its implications.

The reactions to the judgment were ­reliably partisan. “Good. Putting ­Holyrood in its place. Owning the Nats. Reminding them who is boss”. But this kind of political reaction flatly ignores the legal and political realities of devolution since 1998.

On this framing of the problem, you’d think MSPs never repeal laws passed by the Westminster Parliament, and that the perfidious Nats had deliberately ­overstepped their competencies just to provoke the UK Government. This ­ignores the fact the first draft of the ­UNCRC Bill passed without dissent in Holyrood. It also ignores that MSPs change ­Westminster legislation constantly.

When Holyrood was established, it ­inherited a substantial statute book from Westminster dealing with what would become devolved areas – from criminal justice and education to healthcare, the environment and children’s rights.

Since 1998, in some areas, MSPs have adopted whole new laws. But in ­others, they’ve made amendments to the ­existing statute book – adding a word or ­section here and deleting a clause or two there – modernising the legal framework ­efficiently rather than starting every time from scratch or re-legislating for ­legislating’s sake.

Anyone familiar with law knows this is how law-making works. As a ­result, the ­devolved statute book is now a hodge-podge of new Holyrood ­legislation and old Westminster Acts, which have been ­subject to more and less editing by ­subsequent parliaments in Edinburgh over the last two and a bit decades.

Nothing in Lord Reed’s UNCRC ­judgment showed the slightest reflection on this reality while dishing out lectures on the importance of creating a devolved framework that was “coherent, stable, workable”.

Considering Reed is a formidably bright guy, this was quite the omission. But omit it his judgment did, leaving the ­Scottish Government to puzzle through how precisely children’s rights could ­apply to legislation passed by Holyrood but not by Westminster when the two are often so intractably tangled together. The implication of Reed’s judgment is that half a sentence in an Act might be subject to judicial review, but the rest of the ­sentence was immune.

IN amending the bill, the Scottish ­Government decided to give litigants a simpler time. The new UNCRC rights will now only apply to Acts of the Scottish Parliament. It won’t apply to Westminster legislation or any amendments Holyrood has made to them since. That may sound technical. It isn’t. It puts great swathes of the statute book outside the scope of review.

The starkest example I can think of is the Children (Scotland) Act 1995. Enacted before devolution, the law sets out rules which are absolutely critical to children’s rights, from the framework for adoption to rules on local government taking children into care. These issues fall squarely within Holyrood’s powers. Thanks to the artificial, impractical and inconsistent approach the Supreme Court has mandated – the 1995 Act won’t be subject to the new children’s rights framework at all.

Critics of the Scottish Government have been complaining about the delays in actioning the Supreme Court’s judgment. Surely it’s an easy fix. Get on with it. But when you dig into the guts of the issue, it isn’t really so easy or uncompromised, is it? Proponents of the UNCRC have ­consistently demanded a “maximalist” approach to incorporating these rights into Scots law, giving them the fullest effect possible. What we’ve got instead is something minimalist, patchy, incoherent.

Nobody wants to admit this. ­Campaigners who’ve championed these human rights measures want to bank a win, however thin and compromised the reality of what they’ve won might be. Human rights academics want their stake of the impact kudos too – and are perhaps understandably reluctant to explore the limitations of what they’ve helped achieve. The Scottish Government too – while registering its dissatisfaction with the current situation – doesn’t want to shout too loudly about the extent to which the Supreme Court has buggered up its legislation either.

And we aren’t through with the ­implications of Lord Reed’s problematic judgment. The Scottish Government is currently consulting on a new bumper Human Rights Bill, which wants to do a whole lot more enshrining and recognising of fundamental rights recognised in international law. The proposals are acronym central – there’s CEDAW and the ICCPR. Suffice it to say, ministers want to bring a range of economic and ­social rights into Scots law too. But if the changes this week are anything to go by, that legislation is also doomed to be fragmented and incoherent.

If you verbalise these kinds of thoughts in Scotland’s human rights congregations, you’ll be told pretty smartly it is better to light a candle than curse the dark – that this is a start, a beginning. Maybe it is. But having been gutted by the UK Supreme Court, this bill looks like a very small candle – and a whole lot of dark.