European Charter of Local Self-Government Bill and the UNCRC Bill - next steps: statement by Deputy First Minister

Deputy First Minister John Swinney statement to the Scottish Parliament on 24 May, 2022 on next steps following the Supreme Court Judgement on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

Presiding Officer, on the 6th of October, the Supreme Court gave its judgment on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.  When I updated Parliament that day, I explained that comprehending the implications of the judgment would require careful consideration. I also committed to keeping Parliament updated as and when I could.

Since the Supreme Court’s judgment, I have made clear that I remain committed to the incorporation of the UNCRC to the fullest extent possible and that, to allow incorporation of the UNCRC as soon as practicable, our preference is to address the Supreme Court’s judgment by returning the UNCRC Bill to Parliament via the Reconsideration Stage.

I reassured Parliament that, even although the European Charter of local Self-Government Bill was a Member’s Bill, the Scottish Government remained committed to supporting the Bill and to work closely with Mark Ruskell, as designated member in charge, to support him taking forward the next steps.

I have also been open about my attempts, since receiving the judgment, to engage with the Secretary of State for Scotland, to explore potential routes to increasing the effectiveness of incorporation of the UNCRC.  Regrettably, the Secretary of State has made it clear that he is unwilling to address the issues with the devolution settlement that have impacted on our ability to do that.

Members will be aware that the Supreme Court judgement had implications in terms of the application of the UNCRC to United Kingdom legislation that pre-dates devolution, but is now within the legislative competence of the Scottish Parliament, for example the Education (Scotland) Act 1980. Although that is legislation that relates to our own children, in our own schools, in our own country, it is Westminster legislation, so we cannot following the Supreme Court judgement, apply the UNCRC to it. That is the ludicrous constitutional position that Scotland finds itself in.

Our approach to the UK Government also included steps that could be taken to ensure all legislation on devolved matters is brought efficiently within the scope of the UNCRC Bill, without altering the devolution settlement.    

The Secretary of State has now made it clear that he is unwilling to explore even standard Scotland Act order options, that are within the current devolution settlement.  Members will form their own views, but I cannot see how this is consistent with the Secretary of State’s comments in the House of Commons in October where he committed and I quote “to engage constructively with the Scottish Government to ensure relevant issues that may arise are addressed at the earliest possible stage.”

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.

Having exhausted these pragmatic options with the UK Government, I am now in a position to update Parliament on what we consider is necessary to fix the Bills. I am grateful to you, Presiding Officer, and the Bureau for making time to have this statement today.  

When the UNCRC Bill was unanimously passed in March 2021, Parliament came together to make a significant statement of intent on who we are and what we collectively seek to achieve as Parliamentarians for the people of Scotland. That was a landmark moment in the Scottish Parliament’s history.

The intent behind the Bill is to deliver a proactive culture of everyday accountability for children’s rights across public services in Scotland. As passed, the Bill would require all Scotland’s public authorities to take proactive steps to ensure the protection of children’s rights in their service delivery and make it unlawful for public authorities to act incompatibly with the UNCRC requirements as set out in the Bill.  Children, young people and their representatives would have a new ability to use the courts to enforce their rights.

On the 12 April, the UK Government referred four provisions of the Bill to the Supreme Court. Those were:

  • section 6, which makes it unlawful for a public authority to act in a way that is incompatible with the UNCRC requirements;
  • section 19, which creates an obligation to interpret legislation compatibly with the UNCRC requirements, so far as it is possible to do so;
  • the section 20 remedial power to allow a court to strike down certain legislation found to be incompatible with the UNCRC requirements; and
  • section 21, which allows a court to declare certain legislation to be incompatible with the UNCRC requirements.

The Supreme Court’s judgment was that aspects of each of these sections were outside the legislative competence of the Scottish Parliament.

The referral also covered the European Charter of Local Self-Government Bill.  That Bill strengthened the status and standing of local government by incorporating the European Charter of Local Self-Government into Scots law. Starting as a member’s Bill, it too was passed unanimously by the Scottish Parliament and supported by the Scottish Government and by local government through CoSLA.   

The Bill was intended to develop and further strengthen the relationship between the Scottish Government and local government in Scotland, and so ensuring that priorities and policies are developed and delivered in partnership.  The Supreme Court’s judgment was that section 4, which creates an obligation to interpret legislation compatibly with the requirements of the Charter, so far as it is possible to do so; and section 5, which gives courts the power to declare legislation to be incompatible with the Charter, were outside the competence of the Scottish Parliament for the same reasons applied to the UNCRC Bill.

In my statement on the 6th of October, I expressed my disappointment that the court’s judgment could potentially limit the aspirations agreed by this Parliament. That judgment made plain that we are constitutionally prohibited from enacting legislation that this Parliament unanimously decided was right for Scotland. We have, however, fully respected and carefully considered the implications of the judgment. 

We will now begin engagement with key stakeholders on what we believe are necessary changes to the Bill at Reconsideration Stage to address the judgment and support Mark Ruskell in doing the same for the European Charter of Local Self-Government Bill.

To address the judgment in relation to section 6 of the UNCRC Bill it is clear that we need to expressly limit the compatibility duty to devolved functions and devolved bodies. We also need to include in the Bill a provision equivalent to section 6(2) of the Human Rights Act 1998, so that public authorities cannot be found to have acted incompatibly where the underlying primary legislation cannot be read in a compatible way.  

To address the judgment on the judicial remedies in both Bills we need to remove UK Acts from the application of the interpretative obligation, the strike down power and incompatibility declarator power.

This is a disappointing dilution of the effect of the Bills. The Supreme Court judgment means that this Parliament’s power to give the courts remedial powers is limited by the mere fact that existing statutory provision happens to be in an Act of the Westminster Parliament,  even when they concern matters on which the Scottish Parliament could, and frequently does, legislate. 

To be clear, the judgment does not prevent the Scottish Parliament from amending or repealing legislation in devolved areas, either in an Act of our Parliament or the UK Parliament. Where we need to take action to ensure that legislation in devolved areas is UNCRC compliant, that power will be available us.  As a Parliament that has, across all political parties, demonstrated its commitment to the UNCRC Bill, I hope and expect that we will exercise that power whenever we need to. However, a simpler and faster route to remedy would have been for the courts to have access to the judicial remedies for all legislation in devolved areas, including UK Acts.

There will now be 3 weeks of engagement with key stakeholders, including with children and young people and with CoSLA. For the UNCRC Bill, the purpose of that engagement will be to ensure that those who have lobbied passionately for this Bill, understand the changes that are being made and why. The engagement will also help us to understand any concerns that need to be aired during Reconsideration Stage.  For the European Charter, we will engage extensively with Mark Ruskell to explain the changes we think are necessary and to support him taking this Bill forward. 

Following that engagement, I will update the relevant Parliamentary Committees before amendments are brought forward.  We will liaise with the Parliamentary authorities about the timescale for Reconsideration Stage, recognising that we need to make sufficient time to engage with Parliament on the substance of our proposals. We will also engage with the UK Government, given the UK Law Officers’ power under the Scotland Act to refer a reconsidered Bill to the Supreme Court.

It is regrettable that the UNCRC Bill and European Charter of Local Self-Government Bill have been delayed and will not become law in the form which our Parliament agreed.

I reassure Parliament that, while the UNCRC Bill has been delayed, work in relation to implementation of the UNCRC work has continued at pace.  This includes building the capacity for public authorities to take a child rights-based approach to the delivery of services and ensuring that children, young people, their families are aware of and understand the United Nations Convention on the Rights of the Child.

I am delighted that we can now move forward with legislation to build a Scotland which values the unique role of local government and where respect for human rights anchors our society and the institutions which govern and deliver public services for the people of Scotland and especially for the young people of Scotland.

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