Reset devolution
The limits of what the Scottish Parliament can and cannot do are affecting the protection of human rights in Scotland.
‘Devolved competence’ is much more constrained now than it used to be. This has meant a narrowed scope for the UNCRC children’s rights Act; it is also very likely to narrow the upcoming Human Rights Bill.
That is why we are asking the UK Government to urgently amend the Scotland Act to enable effective Scottish human rights law.
What is this all about?
Devolution is limiting protection of children’s rights in Scotland
After years of campaigning by children and young people, the UNCRC (Incorporation) (Scotland) Bill was unanimously passed by the Scottish Parliament.
However, UK Government Law Officers then challenged the Bill in the Supreme Court.
The Court ruled that the UNCRC Bill had to be amended to have a much narrower scope that originally hoped and intended. As a result, the UNCRC Act does not cover any Westminster-passed legislation.
Why does this matter? Because significant parts of public services that impact children’s rights are not covered by the duties in the UNCRC Act. These services should still respect children’s rights, but they are not required to by Scots law in the same way.
It means:
- Children and young people have less ability to hold Government bodies to account through the courts.
- What is covered by the UNCRC Act or not, is very complex and difficult to understand
- There is a big risk that resources are directed towards improving policy and practice that are in scope of the Act, rather than those that would make the biggest difference to children and young people’s lives.
Devolution likely to limit scope of the upcoming Scottish Human Rights Bill
These same devolution problems are also likely to apply to the upcoming Scottish Human Rights Bill. This is because it is expected to mirror the UNCRC Act.
This restriction of devolution could have similar limiting effects in Wales and Northern Ireland.
What we are calling for
We are asking the UK Government to take action to reset devolution by responding to the effects of the UK Supreme Court references in the Continuity Bill and UNCRC Incorporation Bill.
Specifically, we are calling for the Scotland Act to be amended to ensure that the Scottish Parliament is not prevented from legislating to condition the meaning or effect of UK Acts when attempting to advance the protection of human rights.
We are also asking all Scottish MPs to advocate for this simple change.
Want to know more?
Read this in-depth paper by Professor Aileen McHarg, written for the Consortium, where she explores the potential impact on the Human Rights Bill. She also suggests ways to mitigate these impacts.
