The Scottish Government has been accused of making “little progress” on recasting the bill after it took almost two years to confirm it will be forced to amend the UN Convention on the Rights of the Child (UNCRC) bill to allow it only applies to bound provisions for decentralized law.
The bill was backed by Holyrood on 16 March 2021 before being rejected by the UK Supreme Court in October 2021 for falling outside the jurisdiction of decentralization following a challenge by the UK government.
SNP Social Justice Secretary Shirley-Anne Somerville told MSPs that discussions with UK government lawyers had not given her enough confidence that Whitehall would not launch a further legal challenge to the law when it applied to some state-wide statutes may be.
Ms Somerville told Holyrood that despite the “limitations” of the reduced legislation, re-examination of the proposals will result in “a bill that offers valuable protections for children’s rights”.
However, she warned that the revised plans would mean that corporations and public agencies bound by statewide laws could not be tasked with enforcing the laws, including laws on special needs provisions, child care and free school books and equipment.
Last month, the Herald on Sunday revealed that earlier in the year the Scottish Government continued to argue with Whitehall lawyers over where the power to legislate lies.
Read more: SNP disputes with UK lawyers over where the powers for UNCRC lie
The SNP Cabinet Secretary told MSPs that “talks have been held with UK lawyers since September last year” about whether current or future UK legislation could be subject to the UNCRC plans.
She added: “While this has helped us develop these proposals, UK government lawyers have continued to raise questions.
“It has become clear to me that they cannot give us any assurances that whatever they are presented with would guarantee that there would be no further referral to the Supreme Court.”
Ms Somerville said plans to link UK law to legislation could mean that “regulations for children and young people and their representatives, and for working with authorities, become more complex, uncertain and challenging”.
She added, “The most effective way forward is to move forward with the option that minimizes the risk of future Supreme Court appeals and also minimizes the complexity that users must navigate.”
Read more: SNP plays ‘roulette’ after proposing five options to rewrite decentralization regime
“This is to ensure that the compatibility requirement only applies where public authorities are fulfilling obligations under powers contained in an Act of the Scottish Parliament.”
Ms Somerville said that under UK legislation “the compatibility requirement would not apply to services rendered”.
Aileen McHarg, a professor of public law and human rights at Durham University, called the update a “very significant drop” in SNP ministers.
She added: “This means that large parts of public functions that affect children are exempt from the obligation to comply with the UNCRC.”
“This finding highlights the highly restrictive nature of the (much criticized) Supreme Court ruling on the UNCRC bill and encourages me to believe that action to address this judgment should be a priority in any decentralization reform proposal.”
Read more: UN committee urges SNP ministers to ‘expeditiously’ reformulate UNCRC bill
Ms Somerville told MSPs that she would give “due consideration” to calls for a scrutiny of UK legislation, which could be incorporated into decentralized legislation and therefore subject to the UNCRC.
Despite the setback, Ms Somerville insisted the reduced legislation “would give us the widest possible effective coverage for children’s rights”, but warned “this trip would become more effective if there was a political commitment in Whitehall to legislate for children’s rights”. .
She stressed that the amended UNCRC bill, to be presented “as soon as possible after the summer break”, would “produce a clear, coherent and workable bill that offers some valuable safeguards for children’s rights in Scotland”.
But Scottish Conservative Deputy Leader and early-year Shadow Minister Meghan Gallacher called the update “deeply disappointing”.
She added: “You have hesitated and delayed bringing this important legislation back to the Scottish Parliament and it is likely to remain so.”
“The Supreme Court rendered its ruling in October 2021, giving the SNP more than 600 days to make the changes needed to pass this law.
“Instead of doing the necessary work, the SNP continued to politicize children’s rights and promote abuses.
“Little progress has been made and this statement is utterly lacking in substance. The SNP must give up its political games, put our young people first and urgently confirm when this bill can be passed by the MSPs.”
Scottish Labor Party spokesman for children and young people, Martin Whitfield, said: “The SNP wasted years playing political games with this landmark bill, only to end up back where we started.”
“The priority must be to get the largest bill possible as soon as possible, and I’m delighted that this is finally being brought back to Parliament – but we cannot ignore the glaring gaps in these new plans.”
“Despite the SNP’s long-forgotten claim that education is their top priority, the extensive Education Acts still predate the Scottish Parliament and will not be protected by this bill.
“The establishment of the UNCRC must take place without further delay.”
A UK Government spokesman said: “The Supreme Court found that parts of the Scottish Government’s original bill fell outside the jurisdiction of the Scottish Parliament.
“We will review any revised legislation in the usual manner.”