SNP playing 'roulette' after five options set out to rewrite devolution settlement

The Herald on Sunday now understands that SNP ministers have tabled five proposals to the UK Government that would amend Scotland’s devolution agreement in order to ensure the legislation as it stands could become legally competent.

It is understood that three of the options include a Section 30 order, the amendment to the Scotland Act used by David Cameron in agreeing to an independence referendum – while two proposals would put in place a Section 104 order.in the UK Parliament.

A Section 30 order can be used to increase of diminish Holyrood’s legislative authority. The alteration would require approval by the House of Commons, the House of Lords and the Scottish Parliament before becoming law, as would a second independence referendum.

In October 2021, Supreme Court justices found that four provisions of the UNCRC bill, which was unanimously approved by MSPs in March 2021, were outside Holyrood’s legislative competence.

The court agreed with the UK Government that parts of the bill were fundamentally at odds with the Scotland Act as they purported to impinge on Westminster’s sovereignty and its ability to make laws for Scotland in all areas, including those that are devolved.

One option proposed by SNP ministers would use a Section 30 order to give Holyrood the same competence over the entire devolved set of laws, whether Scottish Parliament legislation or UK Parliament acts. The move would allow the Scottish Government’s currently flawed children’s rights legislation to apply to any UK Parliament legislation in a devolved area.

Another option tabled by the Scottish Government would involve using a Section 30 order to allow Scottish courts to enforce UN human rights treaties in any legislation in devolved areas including UK Parliament acts, while another option would specify the courts could enforce only the Convention on the Right of a Child.

It is understood that SNP ministers have also tabled two Section 104 proposals to the UK Government. Section 104 orders are required in the UK Parliament when changes are needed to laws in England, Wales or Northern Ireland as a consequence of Holyrood legislation.

One of the Section 104 order proposals would essentially remove UK acts from the children’s rights bill at reconsideration stage. The UK Government would then be able to re-introduce them once the Scottish Government legislation has been passed.

The second Section 104 option would list UK Parliament acts that would become subject to the Scottish Government legislation, such as UK education and children’s legislation.

Earlier this year, SNP Deputy First Minister John Swinney, who is leading on the Bill, penned a letter to Scottish Secretary Alister Jack stating that the Scottish Government is “working on amendments that can be made to the bill within the current competence of the Scottish Government”.

But Mr Swinney also admitted that he was also investigating “potential routes to increasing the effectiveness of incorporation, beyond those that are now available to the Scottish Parliament alone”.

Mr Jack warned that the Scottish Government’s plans “could imply significant changes to the devolution settlement.”

The Scottish Secretary added that “the current devolution settlement strikes the right balance”.

Scottish Conservative shadow constitution secretary, Donald Cameron, said: “The SNP shamefully played nationalist games with children’s rights and it appears they are prepared to do so again.

“Ministers should be engaging constructively with the UK Government on this issue and putting the needs of children first.

“However, they have pressed ahead and come up with suggestions that are not just beyond the competence of this legislation, but the devolution settlement itself."

Scottish Labour’s constitution spokesperson, Sarah Boyack, has insisted that “a solution must be brought to the Scottish Parliament as soon as possible”.

She added: “This should never have been about petty constitutional bickering – it should have been about children’s human rights.

“It is shameful that political game-playing from both sides has been allowed to hinder this crucial legislation and that even now the SNP are more interested in games of constitutional roulette with the UK government than finding a solution that works.

“The SNP must act urgently to get these laws fit for purpose and in place, so we can focus on how to make these vital principles a reality in law.”

Scottish LibDem MSP Willie Rennie added: "If the SNP were serious about children's rights they would not be stringing this issue out for as long as possible.

"It's a real disappointment that they are not simply bringing forward a revised UNCRC bill in the Scottish Parliament because as we saw with the original legislation, this is an issue where this is significant cross-party agreement on what needs to be done.”

He added: "As it is, these proposals suggest that the SNP care more about picking a fight with their UK counterparts than they do the rights of young people.

"Nevertheless it is also important to remember that legislation is not required to make a host of changes to make life better for children and young people after a tough year. It's time for the government to show where they really stand on children's rights.”

A Scottish Government spokesperson said: “We remain committed to the incorporation into Scots law of the UNCRC to the maximum extent possible as soon as practicable.

“It is vital that we work through the complex issues raised by the Supreme Court judgment to ensure that incorporation can happen as quickly as possible with confidence that any amendments to the Bill do not attract further challenge. The majority of work in relation to implementation of the UNCRC is continuing.

“One aspect which we have been pursuing is engagement with the UK Government to explore whether powers under the devolution settlement can be used to give the UNCRC Bill greater effect than is possible under the Scottish Parliament’s current powers.”