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Reconsideration of the UNCRC (Incorporation) (Scotland) Bill

Letter from the Deputy First Minister and Cabinet Secretary for Covid Recovery to the Secretary of State for Scotland, 1 February 2022

An Leas-phrìomh Mhinistear agus Ath-shlànachadh Cobhid
Deputy First Minister and Cabinet Secretary for Covid Recovery
John Swinney MSP

The Rt Hon Alister Jack MP
Secretary of State for Scotland
Dover House
Whitehall
London SW1A 2AU

1 February 2022

Dear Alister

We have been considering the UK Supreme Court’s judgment that certain provisions of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill would be outwith the legislative competence of the Scottish Parliament.

All political parties supported this key Bill, recognising how important it is to secure and protect the rights of children and young people. As you may imagine, the disappointment resulting from these events is felt acutely across Scotland, especially by our children and young people. In my letter of 20 December, I also expressed my concerns regarding the direction of travel of UK Government in relation to wider Human Rights issues.

As you know, our clear intention in Scotland is to extend and enhance human rights protections. We want to ensure that there is a culture of accountability for children’s rights across public services in Scotland and that children and young people are empowered to defend human rights, including their own.

I noted your commitment in the House of Commons in late October “to engage constructively with the Scottish Government to ensure relevant issues that may arise are addressed at the earliest possible stage”. We have now reached a stage of our consideration of the wide ranging issues arising from the Supreme Court judgment that would allow such engagement to proceed.

We have been working on a number of complementary approaches to addressing the court’s points and maintaining incorporation of the UNCRC in Scotland to the maximum extent possible.

We are working on amendments that can be made to the Bill within the current competence of the Scottish Parliament, and will be discussing these with your officials in due course.

Our preference would be to find a way to enact the Bill as originally passed by Scottish Parliament. So we have also identified potential routes to increasing the effectiveness of incorporation, beyond those that are now available to the Scottish Parliament alone. These include ensuring that UK Acts in devolved areas – such as education – are subject to the UNCRC, and that the Scottish Parliament can make all legislation within its legislative competence meaningfully subject to international human rights standards.

In the meantime, we are planning to return the Bill to the Scottish Parliament for reconsideration. We are currently considering very carefully how to deliver UNCRC incorporation to the maximum extent possible within the limits of the devolution settlement as now clarified by the Supreme Court’s decision.

The next step would be for our officials to start engagement on the options open to us; I hope that can be arranged quickly. I would propose that our respective officials now liaise to start those discussions.

I am copying this letter to Keith Brown and Shona Robison as Cabinet Secretary for Justice and Cabinet Secretary for Social Justice, Housing and Local Government. I am also copying to Dominic Raab, Lord Chancellor and Secretary of State for Justice, and to the First Minister of Wales and the First Minister and deputy First Minister of Northern Ireland.

Yours Sincerely

John Swinney