Scotland will be unable to fully incorporate the United Nations Convention on the Rights of the Child (UNCRC) into law, social justice secretary Shirley-Anne Somerville said today.
This means that a number of key aspects of education will not be covered, as they will instead be covered by legislation that predates the Scottish Parliament.
In May outgoing children’s commissioner Bruce Adamson raised concerns about the lack of movement on incorporating the UNCRC into Scots law.
A landmark children’s rights bill was unanimously passed by MSPs in 2021 but it was struck down by the UK Supreme Court later that year, on the grounds that it went beyond the powers of the Scottish Parliament.
Children’s rights legislation amended
Today it has been announced that the bill will be significantly narrowed to only cover post-devolution legislation - that is, since the Scottish Parliament convened in 1999.
Addressing the Scottish Parliament this afternoon, Ms Somerville gave the example of the Education (Scotland) Act 1980 for an indication of what is now not covered by the bill.
She said: “This [pre-devolution legislation] covers the provision of education, including standards, special-needs provision and free school books and equipment.
“Another example of where the compatibility duty will not apply is when services are being delivered under the Children (Scotland) Act 1995. This will include, for example, local authorities’ duties in relation to looked-after children and personal relations with their parents and brothers and sisters.”
Ms Somerville said that while ”we remain absolutely committed to Scotland being the first UK nation to incorporate the UNCRC into domestic law”, the Scottish government could only proceed with a watered-down version of the original bill in order to minimise the prospect of being blocked again by the Supreme Court.
The Scottish government had “reached the conclusion that the most effective route forward is to progress the option that minimises the risk of a further referral to the Supreme Court, and which also minimises the complexity users will need to navigate”.
Ms Somerville also explained that the government was considering calls for an audit of UK acts in devolved areas and acts of the Scottish Parliament. The intention would be to explore whether the effects of today’s announcement could be mitigated through new acts of the Scottish Parliament.
But the social justice secretary also took aim at the UK government, adding: “The simplest way to secure protection for children’s rights, in Scotland and across the UK, and to do so as fully as possible, is for the UK government to incorporate the UNCRC into UK law.”
Ms Somerville said she would be writing to Scottish secretary Alister Jack ”to confirm how we will amend the UNCRC bill and to urge the UK government to bring forward its own legislation to incorporate the UNCRC”.
She said Scottish devolution was “under attack” and that ”once again we find the democratic will of this Parliament blocked by Westminster”.
Ms Somerville hoped to present any amendments to the bill to Parliament “as soon as possible after the summer recess”.
Scottish Conservative deputy leader Meghan Gallacher said: “The Supreme Court made their ruling in October 2021, giving the SNP more than 600 days to make the changes needed to pass this law.
“Instead of putting the necessary work in, the SNP have continued to politicise children’s rights and promoted grievance.
“Little progress has been made, and this statement completely lacked any substance.”
Scottish Labour social justice spokesperson Pam Duncan-Glancy said she was concerned that the narrowing of the bill meant that education standards, special-needs provision and local authority duties towards children would now instead be covered by pre-devolution legislation dating back to 1980.
This, said Ms Duncan-Glancy, meant “we’re still now relying on an outdated, Thatcherite piece of legislation that is older than me”, and that the Scottish government’s “inaction has led to a betrayal of children and young people today”.
Acting children’s commissioner Nick Hobbs said: “Our office continues to call for Scottish government to undertake a legislative audit to identify areas of law which are currently incompatible with the UNCRC.”
He added: “The passage of the bill need not and must not be delayed by this audit.
“Children need a clear and urgent timeframe for when their rights will be protected in law. They need decisive action now, not further unnecessary delay.”
