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Chamber and committees

Education, Children and Young People Committee

Scottish Governments response to UK Supreme Courts judgment on UN Convention Rights of the Child

Response from Deputy First Minister with Scottish Governments response to UK Supreme Courts judgment on UN Convention Rights of the Child

Dear Convener

I am writing to provide an update on the Scottish Government’s response to the UK Supreme Court’s judgment on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

I understand that there may be frustration that we are not yet in a position to address the Supreme Court judgment or to share our detailed considerations. Please be assured that the Scottish Government is committed to incorporating the UNCRC to the fullest extent possible as a matter of urgency.

The Supreme Court decision raises a number of complex issues for both the Bill and the wider devolution settlement, and these complexities require very careful consideration. It is vitally important that we work through the full implications of the decision to ensure that incorporation can happen as quickly as possible with a high degree of confidence that any amendments to the Bill do not attract further challenge. There are mechanisms in place for discussions with the UK Government to minimise these risks. In our view, it is essential to take the necessary time now on detailed consideration of these issues.

To allow incorporation of the UNCRC to the fullest extent possible as soon as practicable, our preference is to address the Supreme Court’s judgment by returning the Bill to Parliament via the Parliamentary ‘reconsideration stage’. We are currently considering very carefully whether that route strikes the best balance between delivering UNCRC incorporation to the maximum extent possible while also addressing the Supreme Court's decision and minimising the risk of further challenge.

As soon as it is possible to do so, we will explain our proposed response to the Supreme Court judgment and invite responses from targeted stakeholders to a small number of questions. This will focus on the technical means by which we propose to effect incorporation to the fullest extent possible, in light of the judgment, and we will not be revisiting the broader principles of the model of incorporation. The purpose of the targeted engagement will be to help make sure that, in light of the Supreme Court judgment, stakeholders are confident that the proposed route to incorporation does not diminish our commitment to incorporation to the maximum extent possible.

I am also committed to working with the Scottish Parliament to agree a timetable which enables us to move forward quickly whilst ensuring it has the opportunity to properly scrutinise our legislative response to the Supreme Court’s judgment.

Although on World Children’s Day I was not in a position to set out how we intend to address the Supreme Court’s judgment, we used that date as an opportunity to issue a package of publications and communications. The overall purpose was: to reassure public authorities and children and young people that the Scottish Government remains committed to children’s rights and to UNCRC incorporation; to showcase the work already being done to support implementation even before legislative incorporation; and to provide direction for public authorities to fulfill their existing reporting duties and embed children’s rights into their work.

We published two reports on progressing children’s Human Rights that were compiled in accordance with our duties under the Children and Young People (Scotland) Act 2014. Progressing the human rights of children in Scotland: report 2018 to 2021 set out how the Scottish Government has worked over the past three years to take forward children’s rights and Progressing the human rights of children in Scotland: action plan 2021 to 2024 set out our four strategic priorities for the next three years. We also published updated guidance for Children’s Rights and Wellbeing Impact Assessments and Introductory Guidance on Children’s Rights and the UNCRC in Scotland. We issued an accompanying email to public bodies, explaining the impact of the announcements on their organisations, and actions they should take in response and, as already mentioned above, I issued a short video message reassuring children that we remain committed to incorporation of the UNCRC.

I hope this letter provides assurance of my commitment to incorporation of the UNCRC to the maximum possible as quickly as practicable. As soon as I am able to, I will provide a further update to Parliament.

Yours Sincerely
John Swinney