THE UK Government is preparing to challenge a Holyrood Bill on improving children’s rights after Deputy First Minister John Swinney rejected requests to amend it.

Scottish Secretary Alister Jack warned UK law officers were considering referring to the Bill to the UK Supreme Court because it encroached on Westminster’s powers.

He said that was “a last resort” but said the Bill appeared to be “contrary to the devolution settlement” by limiting Westminster’s ability to legislate for Scotland.

Deputy First Minister John Swinney recently branded the requests to change the Bill a "menacing" assault on Holyrood's powers.

If the referral goes ahead, it would stop the Bill receiving Royal Assent and becoming law until the country’s top judges have considered it. The UK Supreme Court could then uphold the Bill or sent it back to MSPs to be changed. 

The only other time the UK Government intervened this way was in 2018, when it asked the Court about a Holyrood Bill intended to ensure continuity of EU law after Brexit.

Although most of the Holyrood Bill was found to have been competent when passed, Westminster Brexit laws overtook it while it was on hold and rendered it defunct.

The Holyrood Bill involved in the new row, which incorporates the UN Convention on the Rights of the Child (UNCRC) into Scots Law, was passed unanimously on March 16.

The legislation obliges public authorities to respect the children's rights and comply with UNCRC requirements.

Despite cross-party support for the Bill’s aims, there was controversy over some sections, which refer to it applying to UK as well as Holyrood legislation.

In a letter to Mr Swinney tonight, Mr Jack said he welcomed and respected Holyrood’s right to legislate on children’s rights, but added: “Unfortunately, the legislative competence of specific provisions in the UNCRC Bill is in doubt.

“The UK Government has concerns with section 6 of the Bill relating to the legal obligations it could be seen to place on UK Government Ministers in reserved areas. 

“The UK Government also has concerns with regards to sections 19-21 of the Bill. Our concern is that these sections of the Bill would affect the UK Parliament in its power to make laws for Scotland, which would be contrary to the devolution settlement.

“The UK Government respects the Scottish Government’s right to legislate on this matter in line with its responsibilities under the devolution settlement. What it cannot do is seek to make provision that constrains the UK Parliament’s ability to make laws for Scotland.”

He said the UK Government would now use the four-week gap between the Bill passing and Royal Assent to consider whether to refer it to the UK Supreme Court.

He said: “The Law Officers have only used [this] power once before to make a referral to the Supreme Court on legislative competence grounds and we consider using it only as a matter of last resort. The final decisions will be communicated to the Presiding Officer in the normal way.

“While the UK Government and Scottish Government have different views on the benefits of incorporating conventions into statute, as set out above we respect Scottish Parliament's ability to legislate on this in devolved areas. 

“However, doubt about the competence of specific provisions in the Bill serves no one.”

He denied Mr Swinney's recent claim that the requested changes were part of an "orchestrated and sustained assault" on the powers of the Scottish Parliament.  

The move follows Mr Jack asking Mr Swinney to change the Bill in private earlier this month.

On March 4, the Scottish Secretary asked Mr Swinney to amend the Bill to make it clear “that Westminster legislation was removed from the scope of sections 19 to 21”.

However Mr Swinney refused, and publicly denounced the request at Holyrood as “menacing”.

He told MSPs that if the sections were removed, it would end the protection in relation all the Westminster Acts which fell within the competence of the Scottish Parliament.

He said: “That would include all pre-devolution legislation over which competence has been transferred.”

He cited the Children (Scotland) Act 1995, the Education (Scotland) Act 1980, the Social Work (Scotland) Act 1968, the Family Law (Scotland) Act 1985, and the Criminal Procedure (Scotland) Act 1995 and the Further and Higher Education (Scotland) Act 1992 as examples.

Referring to Mr Jack’s request to amend the Bill, Mr Swinney said: “I told the Secretary of State for Scotland that we would do no such thing. 

“The Secretary of State for Scotland thinks that he can write menacing letters to the Deputy First Minister of Scotland to seek to exempt key pieces of legislation that are integral to this Parliament’s legislative competence.”

He then accused Tory MSPs trying to amend the Bill in the way Mr Jack wanted of being his “functionaries”, tasked with doing “his bidding for him later”. 

He said: “That demonstrates that a very orchestrated and sustained assault is under way on the Parliament’s powers. I am not surprised that that is being cooked up in the secretary of state’s office.”

Tory MSPs pointed out the Law Society of Scotland had also warned the Bill could intrude on Westminster laws, including future ones unrelated to the devolution settlement.

However Ms Swinney said: “If I did what the secretary of state requested in his letter and if we supported [the related Tory] amendments... we would limit the protections that are available for children and young people. That would contradict the direction of the bill. 

“Whatever the method, we are pretty clear that there is an organised threat to the powers of the Scottish Parliament - and the Scottish Government will have none of it.

“I hope that members from across the political parties will join us in sending a strong signal that they... are determined to protect the powers of the Scottish Parliament.”

A Scottish Government spokesperson said: “All parts of the UNCRC Bill are within the legislative competence of the Scottish Parliament.

"The changes proposed by the UK Government  would significantly undermine the protection for children’s rights in Scotland that the Bill seeks to put in place, threatening to undercut both the important measures contained in the legislation and key principles of devolution.

“These changes would mean that crucial provisions in the Bill would not apply to major pieces of legislation that fall within the legislative competence of the Scottish Parliament and which are key in relation to children’s rights. This would include the Children (Scotland) Act 1995, the Education (Scotland) Act 1996 and the Children and Young Persons (Scotland) Act 1937.”