SNP wrangling with UK lawyers over 'where powers lie' for UNCRC

In October 2021, Supreme Court justices found that four provisions of the UNCRC bill, which would embed the international children’s rights standards into Scots law, 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.

Read more: UN committee tells SNP ministers to 'expeditiously' redraw UNCRC Bill

But more than two years after the legislation was unanimously passed by Holyrood, vised plans have not been tabled, with the policy branded a “three-year programme”.

Meeting minutes of the UNCRC strategic implementation board, obtained through Freedom of Information requests, shows that as late as January this year, discussions between Holyrood and Westminster have continued to centre around trying to make the legislation work in reserved areas of law.

The document states that “discussions with lawyers” in the UK Government “have focused on whether and how the Supreme Court judgement enables us to require public authorities to act compatibility where they are acting under powers conferred by a UK act in a devolved area” that gives them “legislative discretion to do so”.

The aim of the board is to "provide strategic oversight of a comprehensive and joined-up programme to implement" the legislation.

In April 2022, the Herald on Sunday revealed that then deputy first minister John Swinney had tabled five options to essentially rewrite the Scotland Act to push through the legislation following the Supreme Court loss.

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

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.

Another option tabled by the Scottish Government would 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.

Opposition MSPs and campaigners have vented their frustration at the amount of time it has taken for revised legislation to be brought back to Holyrood through a reconsideration stage.

The board describes the project as “a three-year programme to further embed the UNCRC into policy and practice in Scotland and deliver the provisions in the UNCRC (Incorporation)(Scotland) Bill”.

Minutes show that in February 2023, the strategic implementation group said it would “hope to conclude engagement with UKG on amendments to the UNCRC Bill and set out timetable for parliamentary process”.

In October 2022, the board prioiritsed being able to “share amendments to the UNCRC Bill with relevant ministers for clearance”.

In the same month, the board has held discussions with the Scottish Parliament “to test admissibility of draft amendments to the bill” and had “engaged with UK Government to try to identify if they have any concerns about the legislative competence of the draft amendments”.

Read more: Gilruth: 'No prevarication' over UNCRC 587 days after court loss

By November last year, it was marked as a priority to bring forward a “motion to reconsider the Bill” at Holyrood, with amendments due to be published. But seven months on, the proposals are still yet to be made public.

Reports show that much of the board’s work has centred around engagement with stakeholders and groups and producing internal videos, while little progress has been made in drafting legislation.

Scottish Conservative shadow constitution secretary, Donald Cameron, said: “The SNP deliberately provoked grievance over this bill as a pre-election stunt back in 2021.

“For them still be trying to make the bill operate in relation to reserved matters is astonishing.

“Every party in the Scottish Parliament supports the principles behind this bill so it is completely unacceptable that SNP ministers have not found a way to bring this back to Holyrood yet.”

He added: “They should end their politicisation of children’s rights, work constructively with the UK Government and ensure this bill can be passed again by MSPs as quickly as possible.”

Labour MSP, Martin Whitfield said: "It's clear for all to see that the SNP government has cynically used the UNCRC as a constitutional football rather than a way to improve the rights of young people.

“It's time for the SNP Government to focus on what can be done to strengthen the rights of young people within the competence of Scotland's parliament.”

Willie Rennie

Scottish LibDems MSP, Willie Rennie, said: “SNP ministers have been told to get their act together, but they are dithering. “Scottish Liberal Democrats have repeatedly called for a revised bill containing the elements which are within the competencies of the Scottish Parliament to be fast-tracked for debate.

“Rather than coming up with a fix, the SNP are tying themselves in knots over where powers lie. They are putting the interests of children all across Scotland on the backburner."

Speaking in Holyrood, SNP Education Secretary Jenny Gilruth, told MSPs that there has “not been prevarication” over bringing back updated plans, but admitted that “fixing the CRC has been complicated”.

She added: “We need to address the Supreme Court judgement.

“It’s now hugely important we go back to fix the legislation to ensure we improve the rights of children and young people, and we do so as quickly as possible.

“Yes there is a responsibility of this government and our officials continue to engage, but there’s also a responsibility on the part of the UK Government.”