Bruce Adamson, Children and Young People’s Commissioner Scotland, has responded to the delayed children’s rights legislation in Scotland.

He said:

“The Bill passed unanimously by the Scottish Parliament in March 2021 should be in force by now; it is disappointing that the Scottish Government has taken nearly eight months to set out how the Supreme Court’s judgement will be taken into account. Every single day of delay is a day when children’s rights are not fully protected.”

The UNCRC (Incorporation) (Scotland) Bill was backed unanimously by the Scottish Parliament over a year ago in March 2021. There was a legal challenged by the UK Government. It then went to the Supreme Court and in October 2021 it ruled that certain parts of the Bill were outwith the legislative competence of the Scottish Parliament. Although Scotland has its own Parliament which can make laws, all of these have to be then approved by the reigning monarch before they can become law. The UK Government can challenge what the Scottish Parliament passes before it gets to that final stage because power is retained at the UK level. ( UK Government Successfully Challenges Incorporating Rights of the Child into Scots Law: “the protection of children’s human rights must still happen.”)

The Scottish Parliament had unanimously passed the Bill which would have put into Scots Law much of the  UN Convention on the Rights of the Child. It was heralded as groundbreaking legislation because it would have strengthened children’s rights in Scotland. The UK Government’s objection meant that there has been this long delay. The Scottish Government accepted the findings of the Supreme Court and is now working round that with a weakened response. The Bill before the Scottish Parliament – which all MSPs in Scotland supported – will now have to be changed.

John Swinney, Deputy First Minister of Scotland said:

“The UNCRC Bill was passed by the Scottish Parliament to deliver the highest protection possible for children’s rights. The Supreme Court ruling was bitterly disappointing, but we have fully respected and carefully considered its implications.

“We sought support from the UK Government to make modest adjustments to the Scotland Act to address the issues with the devolution settlement that the Supreme Court ruling highlighted. Despite their public commitment to engage constructively, this was rejected by the Secretary of State for Scotland.

“As a result, we will remove UK Acts from the remedial provisions within the Bill, which is a dilution of the effect of the legislation, and we will consult with children and young people on the proposed changes.

“It is disappointing that this will not become law in the form which our Parliament agreed. However, we can now move forward with legislation to build a Scotland where respect for human rights anchors our society and the institutions which govern and deliver public services.”

The original Bill passed in the Scottish Parliament would have required Scotland’s public authorities to take proactive steps to ensure the protection of children’s rights in their decision-making and service delivery and make it unlawful for public authorities, including the Scottish Government, to act incompatibly with the UNCRC requirements as set out in the Bill.

The UK’s Secretary of State for Scotland, Alister Jack, “is unwilling to explore even standard Scotland Act order options, that are within the current devolution settlement,” John Swinney told Scotland’s Parliament.

John Swinney continued:

“The UK Government has refused to countenance expanding the devolution settlement to allow for full incorporation of the UNCRC into Scots law. They have also refused to take steps to support incorporation of the UNCRC into areas that are wholly devolved. At every stage of the process, they have acted as a barrier to this Parliament legislating to protect the rights of children in Scotland.”

The Scottish Government will now consult with children, young people, COSLA and other key organisations for 3 weeks before bringing forward to the Scottish Parliament the changes required.

Bruce Adamson, Children and Young People’s Commissioner Scotland, said:

“All children will benefit from the protections of their rights being put into law, but it is particularly important for those children whose rights are most at risk. It is even more urgent for Scotland to secure children’s rights given the UK Government’s recently announced plan to weaken the protections in the Human Rights Act. Covid-19 and the cost-of-living crisis require a human rights-based response.

“This law will give children the power to enforce their rights, and we know from countries which have already incorporated children’s rights, that this has the potential to deliver transformative change.

“Incorporation means it will no longer be good enough to simply pay lip service to children’s rights; they will be fundamental when it comes to policies, legislation and budgets. And there will be much-needed accountability for public bodies who fail to respect, protect and fulfil children’s rights.”

You can watch the statement from John Swinney here and the responses from other MSPs in the Scottish Parliament

Fiona Grahame