Supreme Court Judgment

– in the Scottish Parliament on 6th October 2021.

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Photo of Alison Johnstone Alison Johnstone Green

The next item of business is a statement by John Swinney on the Supreme Court 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. As the Deputy First Minister will take questions at the end of his statement, there should be no interventions or interruptions.

Photo of John Swinney John Swinney Scottish National Party

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. We have had limited time to consider the full implications of that judgment but, 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 Parliamentary Bureau for making time for this statement today.

In every parliamentary session, there are moments when this Parliament comes together to make a significant statement of intent of 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. The Scottish Parliament unanimously passing the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) 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 have made 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 have enabled that historic step to be taken.

We celebrated how the bill would change the lives of children for generations. We imagined how incorporating article 12 would mean that children would have the right to be involved and heard in relation to the decisions that affected their lives. We all looked forward to seeing the improvement that incorporating article 23 would deliver in ensuring that children with disabilities had dignity and self-reliance and were able to actively participate in their community. We were certain that we were doing the right thing by incorporating article 3 so that children’s best interests were 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.

Although we fully respect the court’s judgment and will abide by the ruling, we cannot help but be bitterly disappointed. The ruling makes it 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 judgment also affects the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, which 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 the Convention of Scottish Local Authorities.

The bill was intended to develop and to strengthen further the relationship between the Scottish Government and local government in Scotland and so ensure that priorities and policies were developed and delivered in partnership. The judgment will make such aims more difficult to achieve. The Scottish Government will now liaise closely with the designated member in charge, Mark Ruskell, who has taken over the role from former MSP Andy Wightman, to work out the best potential next steps that can be taken to address the issues arising from the ruling.

The introduction of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was a landmark moment in the Scottish Parliament’s history. The bill was modelled partly on two pieces of legislation that are central to our constitution: the Human Rights Act 1998 and the Scotland Act 1998. It sought to incorporate international human rights law into our domestic law and to 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 by providing powers for our independent judiciary to strike down incompatible legislation in devolved areas or to declare a future piece of legislation incompatible.

That was a new approach for legislation in this Parliament, so the bill took us into new territory, which included the use of the powers of the Parliament and devolved competence. After wide public consultation and full parliamentary scrutiny, we were all clear in entering that territory that that 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 that 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 in an act of the United Kingdom 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.

However, the judgment exposes the devolution settlement as being even more limited than we all—and, 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 that it determines, after open and careful consideration, appropriate roles for the judiciary and the Parliament in that protection.

Strikingly, the 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 that distinction derives from Westminster’s continued claim of sovereignty over all matters, including those that are devolved to this Parliament. However, the effect of that 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, such as the Education (Scotland) Act 2016, which affects Gaelic education, 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. Although it is legislation that relates to our own children, in our own schools, in our own country, it is Westminster legislation, so we cannot apply the UNCRC to it. That is the ludicrous constitutional position that 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 being tied to the continued claim of unlimited sovereignty by the Parliament at Westminster.

There is no doubt that the implications of the judgment are significant from a children’s rights perspective and from the point of view of the aspirations of the Scottish Government and the Scottish Parliament for the country that 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 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” that the Scottish Government took as deliberately exceeding the limitations of competence. However, 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 those difficult questions—a view that the Presiding Officer at the time judged to be within legislative competence, and that was unanimously supported by Parliament.

The Scottish Government notes that this judgment underscores that domestic legal effect to international human rights treaties can be achieved only through incorporation and that, although 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 the bill has been delayed and will not now become law in the form that our Parliament agreed. We remain committed to the incorporation of the UNCRC to the maximum extent possible as soon as is practicable. Although 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 continue, 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. I reassure everyone who has walked with us this far on that journey, encouraging us along the way, that we will reach our destination. The 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 of the judgment—it will require careful consideration, and I will be happy to keep Parliament updated.

However, one thing 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 to our ability to protect our children, I regret to say that it certainly does not feel anything like that.

The Presiding Officer:

The Deputy First Minister will now take questions on the issues that were raised in his statement. I intend to allow around 20 minutes for questions, after which we will move on to the next item of business. I will be grateful if members who wish to ask a question press their request-to-speak buttons now.

Photo of Donald Cameron Donald Cameron Conservative

I thank the cabinet secretary for prior sight of his statement. I refer members to my entry in the register of members’ interests and declare that I am a member of the Faculty of Advocates.

We welcome the legal judgment, because this was always a legal question. It was never about the substance of the policy—there was unanimous support from all parties in the chamber for both bills. However, we warned that parts of the bill would be legally problematic. To its shame, the Scottish National Party did not listen and instead politicised the matter from the very beginning.

In this very chamber, during the stage 3 debate on the bill, the Deputy First Minister characterised the UK Government’s approach as “menacing”. In an election debate, Nicola Sturgeon used it to attack the UK Government and, on Twitter, described the legal challenge as “morally repugnant.”

That political posturing has been comprehensively demolished by the definitive judgment of the Supreme Court. The judgment by Lord Reed, one of Scotland’s most eminent judges, is unrelenting in its criticism of the Scottish Government’s approach. At paragraph 60, he notes that

“the legislation has been drafted in terms which deliberately exceed the legislative competence of the Scottish Parliament.”

“Deliberately exceed”—those are caustic words. The court was in no doubt that it was intentional.

To confirm that this was always about politics and not the law, I ask this: what was the first response by the SNP to its comprehensive court defeat today? As ever, it made the matter about nationalism and its obsession with independence.

Given that the SNP’s disgraceful approach has delayed a bill on children’s rights that every party in the Scottish Parliament supported, will the Deputy First Minister apologise for creating this unnecessary delay, and will his Government make the necessary changes so that the legislation can be passed immediately?

Photo of John Swinney John Swinney Scottish National Party

The delay in implementation of the legislation was created by the UK Government’s law officers’ reference to the Supreme Court. That is the only reason for it.

On the point that Mr Cameron raises about the scope of the bill, I simply remind him that, at stage 3 of its passage, his colleague Alexander Stewart said:

“The direct incorporation method adopted by the bill will ensure a maximalist approach, which is very much to be welcomed.”—[

Official Report

, 16 March 2021; c 101.]

It is a maximalist approach that has caused Mr Cameron to express such concern in his remarks today.

The Government is absolutely committed to implementing the legislation at the earliest possible opportunity, after addressing the remedies that are necessary. I make absolutely no apology whatsoever for being determined to do as much as possible within statute to protect the interests and rights of children and young people in our country. For the United Kingdom’s law officers to take us to the Supreme Court to stop us doing the maximum that we want to do is an absolute disgrace.

Photo of Michael Marra Michael Marra Labour

I thank the Government for advance sight of the statement. Scottish Labour stands ready to get the bill back into Parliament quickly, and to make sure that we can pass a competent act that protects young people’s rights.

The Government’s record on rights shows why the bill is needed. In his statement, the Deputy First Minister said that the decision

“is, essentially, arbitrary. For example, the Scottish Parliament can fully protect children’s rights”.

Too often, however, this Government does not do that.

In recent days, the Scottish Qualifications Authority, which is directly under the remit of this Government and, until recently, the Deputy First Minister, was made subject to the statutory powers of the Equality and Human Rights Commission. That extraordinary move was a result of breaches relating to 112 policies, many of which relate directly to awards of qualifications.

There are other areas where the Scottish Government has refused to act either to the standard of the UNCRC or in the spirit of it. Real and tangible action is needed now and is possible now. Will the cabinet secretary commit to publishing an analysis of every policy area where the Government is not yet meeting the UNCRC criteria, alongside an urgent action plan of how that will be achieved?

Photo of John Swinney John Swinney Scottish National Party

Much of the material that Mr Marra talks about was rehearsed during the passage of the bill. I appreciate that he was not a member of Parliament at that time, but his colleagues wholly supported the bill at all stages of its proceedings.

The argument that Mr Marra advances about the necessity to protect children’s rights is why the Government introduced the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. We did that to make sure that incorporation of the UNCRC would be the statutory position in Scotland, and that there would be a justiciable remedy, should Government or public bodies not fulfil their commitments in that respect.

What worries me about the situation in which we find ourselves is that there are significant areas of statute where that remedy will not be available to be exercised. I cited in my statement the Education (Scotland) Act 1980; the Children (Scotland) Act 1995 is another example. During the stage 3 proceedings on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, I put on record a host of examples in relation to which there will be, as a consequence of the approach that is now being taken, a limitation on our ability to do exactly what Mr Marra wants us to do.

I want a justiciable remedy to be available to children and young people in our society, and I want it to go across the whole statute book. I want people to be able to challenge where they believe that their rights are not being honoured; unfortunately the ruling today constrains the ability to exercise that because of the objections that were raised by the United Kingdom Government’s law officers. I profoundly regret the stance that they have taken.

Photo of Maggie Chapman Maggie Chapman Green

I share the Deputy First Minister’s deep disappointment about today’s decision, but it is perhaps more surprising and disappointing that the UK Government decided to challenge this Parliament’s unanimous decision in that way, given that a working system for intercepting legislation has long been in place in relation to European Union law.

We now appear to be in a position where the UK Government is not interested in co-operation in the common good to allow us to protect our children’s rights; it is interested only in defending insular borders.

As part of the co-operation agreement between the Scottish Greens and the Scottish Government, we will introduce world-leading human rights legislation, which will enshrine in Scots law the right to a healthy environment, and dignity and rights for older people and LGBTI people. Will the Deputy First Minister advise us of the implications of today’s decision for that legislation? How can we ensure that neither legal technicalities nor the UK Government’s insularity will prevent our enshrining human rights in Scots law?

Photo of John Swinney John Swinney Scottish National Party

Maggie Chapman has raised a number of significant points. She correctly reinforces what Parliament had in mind when it passed the bill—albeit that there seems, on the part of some members sitting behind me, to be a little bit of walking away from those commitments.

What Parliament had in mind was to maximise, within the powers of this Parliament, protection of the rights that could be available to children and young people. We endeavoured to do that as a Parliament, and we agreed unanimously the mechanisms to enable it, but those mechanisms have now been constrained by the objections that the United Kingdom Government raised at the Supreme Court.

That is the factual reality of the situation that we now face. We must consider the ruling and we must reflect on it in relation to the human rights legislation to which Maggie Chapman referred, which will come to Parliament in due course. I assure Maggie Chapman that my ministerial colleagues will engage constructively with Parliament and wider Scotland in order to ensure that we have an open discussion about the application of the issues in the formulation of that legislation.

Photo of Willie Rennie Willie Rennie Liberal Democrat

Months have been wasted, and it is children who have lost out. The Scottish Government knew that there was a problem, but it preferred to wait for a constitutional clash. It is depressingly predictable. The Deputy First Minister has not yet answered this question: why did the Government wait?

Photo of John Swinney John Swinney Scottish National Party

The Government did not pass the legislation on its own; Parliament passed the legislation in its entirety.

Let me go through the absurdity of the question that has just been put to me. If I unilaterally decided not to follow the unanimous legislative decision of the Scottish Parliament, the first person to get on his feet to complain about it would be Willie Rennie. [

Interruption

.] There are lots and lots of loud people shouting behind me.

I am trying to say to members that Parliament knew what it was doing. Members wanted to maximise protection of the rights of children. Willie Rennie was one of them, and his colleagues, all my colleagues, all the Conservatives, all Labour Party members and all the Greens wanted it, too. Everybody here wanted that protection to be put in place; the people who objected were the United Kingdom Government’s law officers.

That is the factual reality. I regret that enormously, because nothing would have pleased me more than to get the legislation on the statute book and to put in place the type of protection that Mr Marra raised with me. Nothing would have made me happier. What has thwarted that is the actions of the United Kingdom’s law officers.

The Presiding Officer:

As members would expect, many members want to ask a question. I would be grateful if questions and responses could be short and succinct.

Photo of Rona Mackay Rona Mackay Scottish National Party

On the day on which the UK Government is cutting £20 per week from the poorest people in our society, thereby pushing thousands of children into poverty, does the Deputy First Minister agree that the Supreme Court ruling today has shown that devolution simply does not enable this Parliament to protect Scotland and, in particular, our children, from Westminster control?

Photo of John Swinney John Swinney Scottish National Party

There are clear limitations placed on the Scottish Parliament’s ability to legislate to the maximum extent through which it wished to protect the rights of children and young people in Scotland. We will do as much as we can to remedy that, in the spirit of the unanimous view of Parliament.

United Kingdom Government actions of the type that Rona Mackay has cited certainly do not help to strengthen the rights and the position of children and young people in Scotland.

Photo of Miles Briggs Miles Briggs Conservative

I am sure that the Deputy First Minister recognises that the UNCRC was ratified by the UK Conservative Government 30 years ago, in 1991.

The Supreme Court ruling points to a number of significant questions about the legal advice with which ministers and Parliament as a whole were provided during the passage of the bills.

That is an issue on which the Parliament must reflect, given what the Deputy First Minister said about the former Presiding Officer’s advice to all members of this Parliament. Will the Deputy First Minister agree to publish the legal advice that ministers received throughout the bills’ progress?

Photo of John Swinney John Swinney Scottish National Party

As Mr Briggs knows, because we rehearsed a lot of these arguments in the previous session of Parliament, the Government does not publish its legal advice. That is a well-established—[

Interruption

.]

We know that Mr Kerr is new to this institution, but he will become accustomed to the fact that Governments do not publish their legal advice.

As for the issues in connection with Parliament, those are not issues for me and it would not be appropriate for me to comment in any respect on their contents.

Photo of Michelle Thomson Michelle Thomson Scottish National Party

As the much-respected Centre on Constitutional Change at the University of Edinburgh has made abundantly clear, the referral of the bills to the Supreme Court by the UK law officers was as much a political decision as a legal one. They were under no duty to refer. Their decision was political.

The effect of the ruling on the UNCRC bill is to deny a range of rights to Scottish children. Although the Scottish Government may now reluctantly seek to amend the legislation to make it compliant, can the cabinet secretary confirm that every effort will be made to ensure that the children of Scotland do not lose out due to the political actions of the UK Government?

Photo of John Swinney John Swinney Scottish National Party

Let me use an example to illustrate the position that Michelle Thomson puts to me to substantiate the argument that she has made. The contents of the Education (Scotland) Act 1980 are entirely devolved and this Parliament can amend that act in its entirety. However, if we wish to extend to the citizens of Scotland the right to judicially challenge the bill in terms of the UNCRC—I refer to the point that I advanced to Mr Marra—that is no longer available to them, because the United Kingdom law officers have taken the action that they have taken.

The act and the area of policy are entirely within the competence of this Parliament, but we cannot extend the rights that we and Parliament want to extend to the bill because of the actions of the UK law officers. Therefore, I am rather with Michelle Thomson on the point that this was not a legal but a political intervention. [

Interruption

.]

The Presiding Officer:

I am sorry, colleagues, but I can hardly hear myself speak. I would be grateful if we could have calm in the chamber.

Photo of Martin Whitfield Martin Whitfield Labour

Paragraph 32 of the judgment states:

“No-one disputes the right of the Scottish Parliament to regard the UNCRC as an important convention and to give effect to it”.

The Deputy First Minister would have the support of the members on this side of the chamber. Can he confirm that we can rectify this by April next year?

Photo of John Swinney John Swinney Scottish National Party

I say to Mr Whitfield that I will do it as quickly as I can. We will have to consider the judgment and other aspects of the legislative programme, and we will come back to the Parliament on those terms. I am certainly very keen to work with members of Parliament, as I was throughout consideration of the UNCRC bill, which ended up being passed unanimously. Not all the legislation that I bring to this institution passes unanimously, but the bill did so and I am keen to work with other parties to rectify the issues. As for the timescale, Mr Whitfield will have to give me some time to consider what is possible.

Photo of Elena Whitham Elena Whitham Scottish National Party

Writing last year to the Local Government and Communities Committee—I am now the deputy convener of the Local Government, Housing and Planning Committee—the president of the Convention of Scottish Local Authorities celebrated incorporation of the European Charter of Local Self-Government into Scots law and noted that she sensed that there was a high degree of support for the bill. That observation proved correct when this Parliament backed the bill unanimously.

Does the cabinet secretary agree that the UK Government’s attack on the act is an attack on the cross-party judgment of both COSLA and the Scottish Parliament as well as on the system of devolved politics in Scotland?

Photo of John Swinney John Swinney Scottish National Party

The local governance bill was not initiated as a Government bill, but we supported it and Parliament adopted it unanimously. I recognise it as a constructive and helpful piece of legislation that cements the position of local government in Scottish democracy and society. Although I regret the fact that we cannot proceed with the legislation at this stage, I give Elena Whitham and the local government community the assurance that the Government will work within the spirit of the legislation as far as we are able without the legislative power being in place.

Photo of Meghan Gallacher Meghan Gallacher Conservative

Throughout his statement, the Deputy First Minister asserted that the UK Government is making a “claim of unlimited sovereignty”. Will the Deputy First Minister accept that, instead of striking a collaborative tone and pledging to work on behalf of Scotland’s children, his statement does nothing but stir up even more constitutional grievance, which even the Supreme Court accepts is deliberate?

Photo of John Swinney John Swinney Scottish National Party

The straightforward way through the matter would have been for our bill to get royal assent without objection from the UK law officers. [

Interruption

.] It was supported by every member of this Parliament. Why on earth are the Conservatives objecting to the passing of legislation that they supported? Do they not understand how ridiculous their line of argument is?

The Scottish Parliament made its choices about how it wanted to deliver the maximum protection for children and young people in our country, and the people who have got in the road and interrupted that are the UK Government’s law officers. Is it any wonder that some of us are disappointed by the outcome of the process?

Photo of Gillian Martin Gillian Martin Scottish National Party

I was a member of the Equalities and Human Rights Committee when the incorporation of the UNCRC was scrutinised and passed, and the bill had overwhelming support from civic Scotland. What hope can the Deputy First Minister give children’s organisations and the many children they support that the UNCRC will inform everything that we do in Scotland in the future, despite the UK Government’s needless patrician decision to flex its muscles and take us to court? Does the Supreme Court ruling make it clear that the current devolution settlement needs urgent attention if children’s rights and the Parliament’s will are at stake?

Photo of John Swinney John Swinney Scottish National Party

Not long before I came to the chamber today, I received a letter from Together—the Scottish Alliance for Children’s Rights—which is signed by countless organisations that work in the field of children’s rights and interests. They appealed to me—I confirmed this in my statement, but I take the opportunity of Gillian Martin’s question to repeat it—to ensure that the Government does everything that it can to work within the spirit of the legislation that the Parliament passed, which is in no way constrained by the referenced unlimited elements of the provision. We will make sure that we advance the cause of children’s rights and operate in a fashion that is consistent with the UNCRC while taking the necessary legislative remedies to address the situation.

Photo of Pam Duncan-Glancy Pam Duncan-Glancy Labour

We cannot lose sight of the people the legislation is for—children across all of Scotland. I am pleased to hear the Deputy First Minister say that he and his Government will seek to realise the rights of children to maximum effect, and I look forward to their support for my young disabled persons transition bill, the immediate doubling of the Scottish child payment, an end to the use of mosquito devices and an amendment to the age of criminal responsibility.

In relation to the UNCRC, it is incumbent on us all to do all that we can to fix the situation and realise the human rights of children in Scotland. In that vein, when the bill was introduced, it included a grace period of six months after it received royal assent before it would have fully come into force. Had the Supreme Court judgment not taken place, the bill would have been implemented in November. The Scottish Government should reintroduce a reviewed bill straight away. Does the Government agree that there has been enough preparation time for incorporation already, and will it commit to ensuring that any review of the bill includes provision for it to be implemented immediately?

Photo of John Swinney John Swinney Scottish National Party

That is a legitimate point to be considered as part of the sequence of events that we take forward. We are aware of the limited range of issues that were the subject of challenge in the bill, and organisations will have the opportunity to consider the basis of the legislation that the Parliament passed. Pam Duncan-Glancy’s point is a material one to consider within the timetable for the scrutiny and implementation of any future legislation.

Photo of Audrey Nicoll Audrey Nicoll Scottish National Party

Paragraph 33 of the judgment highlights the fact that the Welsh Government did not face a legal challenge on the provisions of the Rights of the Child and Young Persons (Wales) Measure 2011, which incorporated the UNCRC. That makes the point even more starkly that it was the UK Government’s choice to challenge the Scottish Government’s bill and not a necessity. Does the cabinet secretary agree that that only goes to demonstrate that the Tory Government at Westminster cares more about exercising unfettered power over Scotland than it does about the rights of children?

Photo of John Swinney John Swinney Scottish National Party

I have a lot of sympathy for that point. I come back to the example that I have repeatedly cited, which is that this Parliament has legislative competence to amend the Education (Scotland) Act 1980 but the UK Government has objected to our extending the right of independent judicial scrutiny of whether issues in the 1980 act are compatible with the UNCRC. That, to me, is a vivid example of how absurd the United Kingdom Government’s objection is, and it illustrates the willingness that Audrey Nicoll talked about to try to constrain the scope and actions of the Scottish Parliament.

The Presiding Officer:

That concludes the ministerial statement.

Photo of Miles Briggs Miles Briggs Conservative

On a point of order, Presiding Officer. Today might not be a good day for ministers but it is certainly not a good day for our Parliament and how we make legislation. The UK Supreme Court ruling calls into question the legal advice that members of the Scottish Parliament have received and, perhaps more so, the legal advice that Scottish National Party ministers have been given and have said that they hold when members are making legislation. In the light of that and the ruling that we have received today, what review or consideration will you and the Parliament undertake of what needs to change?

The Presiding Officer:

I thank Mr Briggs for his point of order. The role of the Presiding Officer is to indicate a view—an opinion—on legislative competence at the point when a bill is introduced, and the intention of that statement is to inform the Parliament in any consideration of the bill. The Presiding Officer has no further role in relation to legislative competence during the passage of any bill, and their view on the matter does not prevent any bill from being submitted for royal assent. In all instances, the United Kingdom Supreme Court is the ultimate authority in determining legislative competence. Its ruling on these matters clarifies the legal position and will inform future consideration of legislative competence.

Photo of Martin Whitfield Martin Whitfield Labour

On a point of order, Presiding Officer. I make reference to the final question that was put to the Deputy First Minister and give my apologies to Audrey Nicoll that I have not been able to speak to her about it. However, paragraph 33 of the judgment states:

“The suggestion seemed to be that the fact that the legislative competence of that provision had not been challenged had some bearing on the present proceedings. But that provision is much more limited in scope than the Scottish UNCRC Bill. It imposes a duty on the Welsh Ministers, when exercising any of their functions, to have due regard to the requirements of the UNCRC and its first two protocols.”

I just wish to put that on the record, Presiding Officer, as a clarification in relation to the final question to the Deputy First Minister.

The Presiding Officer:

Thank you, Mr Whitfield. That is not a point of order, but your comments are now on the record.

There will be a short suspension before we move to the next item of business.

15:28 Meeting suspended.

15:29 On resuming—