UK Government may challenge children’s rights bill

Date: 25th March 2021
Category: Incorporation

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The UK Government has written to the Deputy First Minister with concerns that parts of the UNCRC (Incorporation) (Scotland) Bill go beyond the powers of the Scottish Parliament.

The Scottish Parliament passed the Bill on 16^th March 2021. Every MSP voted to support it. The Bill will make children’s rights under the UNCRC part of the law in Scotland. The First Minister said she wanted to deliver a “revolution in children’s rights” through a Bill that went as far as possible in protecting children’s rights, whilst staying within the powers of the Scottish Parliament.

What is legislative competence?

The Scottish Parliament has limited powers – this means there are some topics it cannot make laws about. These topics include the constitution, immigration and defence. It is only the UK Parliament that can pass new laws on these issues. This is a key part of devolution.

If the Scottish Parliament goes beyond its powers, this can be challenged in the UK Supreme Court.

The Scottish Government takes several steps to make sure new bills stay within the powers of the Scottish Parliament. This includes a statement of compatibility and a statement by the Presiding Officer when a new bill begins its journey through the Scottish Parliament. These steps were taken for the UNCRC (Incorporation) (Scotland) Bill.

What has the UK Government said about the Bill?

The UK Government thinks that certain parts of the Bill go beyond the Scottish Parliament’s powers. It says the Bill could affect UK Government Ministers and limit the UK Parliament’s power to make laws for Scotland.

MSPs debated this when the Bill was going through the Scottish Parliament. The Deputy First Minister pointed out that some UK laws which were made for Scotland before devolution cover topics which are now devolved – for example the Education (Scotland) Act 1980 and Children (Scotland) Act 1995. He said it was right that these should be covered by the new Bill.   

What will happen next?

Before a Scottish Parliament bill becomes a law it needs to get Royal Assent. There’s a four-week window after a bill passes and before it gets Royal Assent. During this time, the UK Government can decide to challenge a bill in the UK Supreme Court. The UK Supreme Court might decide that the bill is within the Scottish Parliament’s powers or it might say that certain parts need to be changed.

The UNCRC (Incorporation) (Scotland) Bill is due to come into force six months after Royal Assent. Some parts of the Bill can enter into force even earlier. The UK Government is currently considering whether to challenge the UNCRC (Incorporation) (Scotland) Bill. If it does, this could delay the Bill getting Royal Assent and therefore may delay it coming into force.

Together remains committed to ensuring that the Bill comes into force as soon as possible. Children’s rights have been significantly impacted by the pandemic and Brexit – they need protected in law now.

• Read the letter from the UK Government here.