Supreme Court Judgement: statement by Deputy First Minister John Swinney - 6 October 2021

Presiding Officer, this morning, the Supreme Court handed down 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. 

Although we have had limited time to consider the full implications of that judgement, given the seriousness of those potential implications, I wanted to come to Parliament at the earliest opportunity to update Members.  I am grateful to you Presiding Officer and the Bureau for making time to have this statement today.  

In every parliamentary term there are moments where this Parliament comes together, to make a significant statement of intent on who we are and what we collectively stand for, showing a shared sense of purpose on what we seek to achieve as Parliamentarians for the people of Scotland.

Presiding Officer, the Scottish Parliament unanimously passing the UNCRC Bill in March was one such moment.

This Parliament set out our collective will to change the culture and practice of how we support children in Scotland.   Incorporating the United Nations Convention on the Rights of the Child directly into our domestic law would make us the first Administration in the United Kingdom and the first devolved legislature anywhere in the world to do so. We felt proud to be the Parliament that would enable this historic step to be taken.

We celebrated how this Bill would change the lives of children for generations. We imagined how incorporating Article 12 would mean that children will have the right to be involved and heard in relation to the decisions that affect their lives. We all looked forward to seeing the improvement incorporating Article 23 would deliver in ensuring that children with disabilities have dignity, self-reliance and are able to actively participate in their community. We were certain we were doing the right thing by incorporating Article 3 so that children’s best interests are a primary consideration in decision-making.

On 12 April, however, the UK Government’s law officers referred certain provisions of the bill to the Supreme Court. That reference meant that the Bill could not be presented for royal assent, and, accordingly, could not become law until the reference was determined.  Today we have that determination.

Presiding Officer, while we fully respect the court’s judgment, and will abide by the ruling, we cannot help but be bitterly disappointed. 

It makes plain that we are constitutionally prohibited from enacting legislation that this Parliament unanimously decided was necessary to enshrine and fully protect the rights of our children.

Before I discuss the implications of that in more detail, I shall make clear that the judgement also affects the Local Self Government Bill.  That Bill strengthened local government by incorporating the Charter 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 local government through CoSLA.   

The Bill was intended to develop and to 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 judgment will make these aims more difficult to achieve.  The Scottish Government will now liaise closely with Mark Ruskell, the designated member in charge, who has taken this role from former MSP Andy Wightman, to work out how best potential next steps can be taken in addressing the issues from the ruling.

The UNCRC Bill was a landmark moment in the Scottish Parliament’s history.  It was modelled partly on two pieces of legislation central to our constitution: the Human Rights Act 1998 and the Scotland Act 1998.  The UNCRC Bill sought to incorporate international human rights law into our domestic law and adopt a judicial route to a remedy.  With the unanimous support of the Parliament, and the overwhelming support of stakeholders, we sought to make those internationally recognised treaty articles directly justiciable in Scottish courts with powers for our independent judiciary to either ‘strike down’ incompatible legislation in devolved areas or, if a future piece of legislation, declare it incompatible. That was a new approach for legislation in this Parliament.  So the UNCRC Bill took us into new territory, including the use of the powers of the Parliament and devolved competence.  After wide public consultation and full Parliamentary scrutiny, we all entered that territory clear that this was the approach that we wanted to take.

The full implications of the judgment need to be considered carefully.

However, our initial view is that the judgment does not prevent the Scottish Parliament from doing something we would consider ‘routine practice’.  It has not narrowed our ability to amend or repeal legislation in devolved areas, either in an Act of our Parliament or the UK Parliament. It has not changed our competence to incorporate international treaties. Nor has it reduced our ability to rely on our judiciary to enforce our statute book.

The judgment does however expose the devolution settlement as even more limited than we all – indeed, the Scottish Parliament itself – had understood.  It sets out new constraints on the ability of our democratically elected Scottish Parliament to legislate to protect children’s rights in the way it determines, after open and careful consideration, appropriate roles for the judiciary and this Parliament in that protection. 

Strikingly, this judgment has decided that there are limitations to devolved competence for the mere reason that existing statutory provision just happens to be in an Act of the Westminster Parliament.   

The reason for this distinction derives from Westminster’s continued claim of sovereignty over all matters, including those devolved to this Parliament.

But the effect of this distinction is, essentially, arbitrary. For example, the Scottish Parliament can fully protect children's rights – by declarations of incompatibility – if those rights are affected by Acts of this Parliament (like Gaelic education under the Education (Scotland) Act 2016), but not if they are in Westminster legislation from before devolution, such as the Education (Scotland) Act 1980- even if the subject matter of that legislation is wholly devolved and could be repealed and replaced by the Scottish Parliament. 

Our own children, in our own schools, in our own country.

But Westminster legislation.  So we cannot apply the UNCRC to that legislation.

That is the ludicrous constitutional position Scotland finds itself in.

The Supreme Court has therefore illustrated the incoherence of the powers of the Scottish Parliament within the current devolved settlement and under the current UK constitutional arrangements, tied to the continued claim of unlimited sovereignty by the Parliament at Westminster.

There is no doubt that the implications of this judgment are significant from a children’s rights perspective and in terms of this Government and indeed this Parliament’s aspirations for the country we want our children to grow up in.

The Scottish Government remains absolutely committed to the incorporation of the UNCRC into Scots law to the maximum extent possible. We want to ensure that we pursue that policy in a way that can be enacted and, therefore, made real in practice.

Members may wish to recall what children told us about how incorporation would change things for the better.

In the evidence that the Children’s Parliament gave in the consultation on the bill last year, a child said:

“I think you should make children’s rights law because it will keep a lot more children safe”.

Bruce Adamson, the Children and Young People’s Commissioner for Scotland, called the incorporation of the UNCRC into Scots law “the most important thing we can do to protect and uphold the rights of children and young people”.

The Supreme Court has criticised the ‘maximalist approach’ the Scottish Government took as deliberately exceeding the limitations of competence.

It is normal for the Scottish Government to invite the Scottish Parliament to make the maximum use of its devolved powers and responsibilities.  Indeed, we are frequently encouraged to do so and on this issue were specifically encouraged to take this approach by many voices within the Scottish Parliament. It was an approach widely supported by many stakeholders and by the children of Scotland who wanted Parliament to protect them to the maximum extent possible.

The law in the area in question had not previously been tested.  The Scottish Government took a reasonable view on these difficult questions, a view which the Presiding Officer of the time judged to be within legislative competence, and which was unanimously supported by Parliament.

The Scottish Government notes that this judgment underscores that domestic legal effect to international human rights treaties can only be achieved through incorporation and that, while it is within the Scottish Parliament’s competence to incorporate international treaties and protect the rights of Scotland’s citizens, the nature of our current devolution settlement and the UK’s constitutional arrangements impose limitations on the extent and manner in which we can do that.

It is regrettable that this Bill has been delayed and will not now become law in the form which our Parliament agreed. We remain committed to the incorporation of the UNCRC to the maximum extent legally possible as soon as practicable.  Whilst the judgment means that the Bill cannot receive Royal Assent in its current form, the majority of work in relation to implementation of the UNCRC can and is continuing. We will now reflect on how to add to those existing protections through incorporation.

The UNCRC is the most widely ratified international treaty, but very few countries have committed to take the journey that Scotland so clearly wants to take. To everyone who has walked with us this far on that journey, encouraging us along the way, I want to reassure you that we will reach our destination. This Government remains committed to the incorporation of the UNCRC to the maximum extent possible.

There is no doubt that we may not yet wholly comprehend all the implications from this judgement – it will require careful consideration and I will be happy to keep Parliament updated.

But one thing, Presiding Officer, is already crystal clear.  Some have said that the Scottish Parliament is the most powerful devolved legislature in the world. On the day that the Supreme Court has confirmed boundaries on our ability to protect our children, I regret to say it certainly does not feel anything like that.

Ends