Chamber and committees

I am not doing that; I am offering Parliament a resolution to an issue and a difficulty that has arisen out of Parliament’s unanimous support for a bill. It is not a bill that just my colleagues voted for; every member voted for it. I do not think that it would be appropriate for me to undermine the unanimous will of Parliament as expressed by the legislation that we have put in place.

We will bring forward the reconsideration stage. Mr Balfour says that it should all be done this afternoon, but if I said that it was all going to be done this afternoon, Stephen Kerr would be on his feet saying that there was not enough time for us to do it all, that we were railroading Parliament and all the rest of it. We will take the necessary time to discuss these issues with the parliamentary authorities and will lodge the necessary amendments.

I will oppose it of my own free will.

No, they do not care.

I do not believe that this Parliament should be trampled over by the UK Government. That is why I have been doing what I have been doing. That is my self-examination analysis complete.

As for some of the other measures that Mr Marra talked about, this Government is doing a lot to address the circumstances of children and young people in our country. Doubling the child payment and extending it even further is one of the strongest things that we can do to support the human rights of children and young people in Scotland.

I am very happy to confirm my willingness to do that.

A really important parliamentary point is that, at the reconsideration stage, the issues that emerged out of the Supreme Court judgment need to be looked at very tightly. It is not a reconsideration of the whole bill or its principles; it is a reconsideration of the issues at stake in the judgment. I have applied a very tight judgment to that in relation to the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, and I will take the same approach in relation to the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. However, I am very happy to engage with stakeholders and with Mr Ruskell to ensure that he is well supported in bringing forward the appropriate measures to Parliament.

Just as we are seeing in several local authority chambers around the country, the Labour Party is being enthusiastically supported by the Conservatives. I am lost for words at the question that Sarah Boyack has just put to me. I thought that people like Sarah Boyack were interested in maximising the protection for children and young people in Scotland—we should not be trampled over by the UK Government in doing that.

Mr Rennie talks about the relationship between the Governments. I have put on record today, as dispassionately as I possibly can, the comments of the secretary of state, who told the House of Commons in October that he was ready to

“engage constructively with the Scottish Government to ensure relevant issues that may arise are addressed at the earliest possible stage.”—[Official Report, House of Commons, 20 October 2021; Vol 701, c 48WS.]

In my answer to Joe FitzPatrick, I set out two propositions that I put to the secretary of state, both of which were rejected. They were attempts by me to ensure that the will of the Parliament was protected. The secretary of state has essentially vetoed that, and I regret that very much.

I will have to bring a reconsideration proposition to Parliament that will restrict what Parliament passed in the spring of 2021. I regret that. However, I certainly did not think that it was in my gift to do that without exhausting the dialogue with the Secretary of State for Scotland. He has not been interested in engaging in that dialogue. I hope that the secretary of state and the office of the Advocate General will engage with us constructively in the advice that is required to ensure that the bills are compliant in the next period. I will update Parliament on that.

Mr Rennie says that there was nothing new in my statement, but I set out to Parliament the legislative changes that I will make, and it is the first time that I have done that. I did not want to do that earlier because I did not want to give up on the possibility of the Secretary of State for Scotland saying, “With these changes, you can keep your bill the way it is.” That is the explanation.

It is obvious that there has to be adequate consultation in Parliament, and we will engage with the parliamentary authorities to do all that and to minimise the impact of the changes on the bill.

I agree whole-heartedly with the statements that Ruth Maguire makes and that it is important to ensure that, in two respects, we live up to the very high ambition that she sets out. First, the Parliament should be prepared to change legislation when we do not believe that it lives up to those aspirations—for example, if there are provisions in the Education (Scotland) Act 1980 that we do not believe are UNCRC compliant, we can legislate to change it and should be prepared to do so. Secondly, the way in which we exercise our wider policy responsibilities—I am thinking particularly about the work on getting it right for every child—is fundamental to ensuring that the aspirations that Ruth Maguire sets out are lived up to. I give that commitment to Parliament.

The whole focus of the UNCRC incorporation bill is to proactively establish an approach in public authorities and public bodies in Scotland that is about protecting the rights of children. It is vital that such a culture is created as a consequence of the legislation, and the obligations that the bill places on public bodies are exactly the type of obligations that will enable the aspirations that Clare Adamson put to me to be fulfilled as a consequence of the legislation.

I assure Clare Adamson that much of the preparatory work has already been undertaken, but we will be able to reinforce that with the passing of the bill. There will, of course, be legal remedies available to a range of different people around the country should they feel that those rights are not fully enacted in existing legislation and not protected by the UNCRC bill.

On 6 October, the Supreme Court gave 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. When I updated Parliament that day, I explained that comprehending the implications of the judgment would require careful consideration. I also committed to keeping Parliament updated as and when I could.

Since the Supreme Court’s judgment, I have made clear that I remain committed to incorporation of the UNCRC to the fullest extent possible and that, to allow incorporation of the UNCRC as soon as is practicable, our preference is to address the Supreme Court’s judgment by returning the UNCRC bill to Parliament via the reconsideration stage.

I reassured Parliament that, although the European Charter of Local Self-Government Bill was a member’s bill, the Scottish Government remained committed to supporting the bill and would work closely with Mark Ruskell, as the designated member in charge, to support him in taking forward the next steps.

I have also been open about my attempts, since receiving the judgment, to engage with the Secretary of State for Scotland to explore potential routes to increasing the effectiveness of incorporation of the UNCRC. Regrettably, the secretary of state has made it clear that he is unwilling to address the issues with the devolution settlement that have impacted on our ability to do that.

Members will be aware that the Supreme Court judgement had implications regarding the application of the UNCRC to United Kingdom legislation that predates devolution but that is now within the legislative competence of the Scottish Parliament, such the Education (Scotland) Act 1980. Although that legislation relates to our own children, in our own schools and our own country, it is Westminster legislation, so we cannot, following the Supreme Court judgment, apply the UNCRC to it. That is the ludicrous constitutional position that Scotland finds itself in.

Our approach to the UK Government also included steps that could be taken to ensure that all legislation on devolved matters is brought efficiently within the scope of the UNCRC bill, without altering the devolution settlement.

The secretary of state has now made it clear that he is unwilling to explore even standard Scotland Act 1998 order options, which are within the current devolution settlement. Members will form their own views, but I cannot see how that is consistent with the secretary of state’s comments in October, when he committed

“to engage constructively with the Scottish Government to ensure relevant issues that may arise are addressed at the earliest possible stage.”—[Official Report, House of Commons, 20 October 2021; Vol 701, c 48WS.]

The UK Government has refused to countenance expanding the devolution settlement to allow for full incorporation of the UNCRC into Scots law. It has also refused to take steps to support incorporation of the UNCRC into areas that are wholly devolved. At every stage of the process, it has acted as a barrier to this Parliament legislating to protect the rights of children in Scotland.

Having exhausted those pragmatic options with the UK Government, I am now in a position to update Parliament on what we consider is necessary to fix the bills. I am grateful to the Presiding Officer and the Parliamentary Bureau for making time for this statement today.

When the UNCRC bill was unanimously passed in March 2021, Parliament came together to make a significant statement of intent about who we are and what we collectively seek to achieve as parliamentarians for the people of Scotland. That was a landmark moment in the Scottish Parliament’s history.

The intent behind the bill was to deliver a proactive culture of everyday accountability for children’s rights across public services in Scotland. As passed, the bill would require all of Scotland’s public authorities to take proactive steps to ensure the protection of children’s rights in their service delivery, and it would make it unlawful for public authorities to act incompatibly with the UNCRC requirements as set out in the bill. Children, young people and their representatives would have a new ability to use the courts to enforce their rights.

On 12 April, the United Kingdom Government referred four provisions of the bill to the Supreme Court. They were section 6, which makes it unlawful for a public authority to act in a way that is incompatible with the UNCRC requirements; section 19, which creates an obligation to interpret legislation compatibly with the UNCRC requirements in so far as it is possible to do so; the section 20 remedial power to allow a court to strike down certain legislation that is found to be incompatible with the UNCRC requirements; and section 21, which allows a court to declare certain legislation to be incompatible with the UNCRC requirements. The Supreme Court’s judgment was that aspects of each of those sections were outside the legislative competence of the Scottish Parliament.

The referral also covered the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. That bill aimed to strengthen the status and standing of local government by incorporating the European Charter of Local Self-Government into Scots law. Starting as a member’s bill, it, too, was passed unanimously by the Scottish Parliament and was supported by the Scottish Government and by local government through the Convention of Scottish Local Authorities.

The bill was intended to develop and further strengthen the relationship between the Scottish Government and local government in Scotland, so ensuring that priorities and policies are developed and delivered in partnership. The Supreme Court’s judgment was that section 4, which creates an obligation to interpret legislation compatibly with the requirements of the charter in so far as it is possible to do so, and section 5, which gives the courts the power to declare legislation to be incompatible with the charter, were outside the competence of the Scottish Parliament for the same reasons that applied to the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

In my statement on 6 October, I expressed my disappointment that the court’s judgment could potentially limit the aspirations that were agreed to by this Parliament. The judgment made plain that we are constitutionally prohibited from enacting legislation that this Parliament unanimously decided was right for Scotland. We have, however, fully respected and carefully considered the implications of the judgment. We will now begin engagement with key stakeholders on what we believe are necessary changes to the bill at reconsideration stage to address the judgment, and we will support Mark Ruskell in doing the same for the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.

To address the judgment in relation to section 6 of the UNCRC bill, it is clear that we need to expressly limit the compatibility duty to devolved functions and devolved bodies. We also need to include in the bill a provision that is equivalent to section 6(2) of the Human Rights Act 1998 so that public authorities cannot be found to have acted incompatibly where the underlying primary legislation cannot be read in a compatible way.

To address the judgment on the judicial remedies in both bills, we need to remove UK acts from the application of the interpretative obligation, the strike-down power and the incompatibility declarator power.

This is a disappointing dilution of the effect of the bills. The Supreme Court judgment means that this Parliament’s power to give the courts remedial powers is limited by the mere fact that existing statutory provision happens to be in an act of the Westminster Parliament, even when they concern matters on which the Scottish Parliament could and frequently does legislate.

To be clear, the judgment does not prevent the Scottish Parliament from amending or repealing legislation in devolved areas in an act of either our Parliament or the UK Parliament. Where we need to take action to ensure that legislation in devolved areas is UNCRC compliant, that power will be available to us. As a Parliament that has, across all political parties, demonstrated its commitment to the UNCRC bill, I hope and expect that we will exercise that power whenever we need to. However, a simpler and faster route to remedy would have been for the courts to have access to the judicial remedies for all legislation in devolved areas, including UK acts.

There will now be three weeks of engagement with key stakeholders, including with children and young people and COSLA. For the UNCRC bill, the purpose of that engagement will be to ensure that those who have lobbied passionately for it understand the changes that are being made and why. It will also help us to understand any concerns that need to be aired during reconsideration stage.

On the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, we will engage extensively with Mark Ruskell to explain the changes that we think are necessary and support him in taking his bill forward.

Following that engagement, I will update the relevant parliamentary committees before amendments are lodged. We will liaise with the parliamentary authorities about the timescale for reconsideration stage, recognising that we need to make sufficient time to engage with the Parliament on the substance of our proposals.

We will also engage with the United Kingdom Government, given the UK law officers’ power under the Scotland Act 1998 to refer a reconsidered bill to the Supreme Court.

It is regrettable that the UNCRC bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill have been delayed and will not become law in the form that our Parliament agreed. I reassure the Parliament that, although the UNCRC bill has been delayed, work in relation to the implementation of the UNCRC has continued at pace. That includes building the capacity for public authorities to take a child’s rights-based approach to the delivery of services, and ensuring that children, young people and their families are aware of and understand the United Nations Convention on the Rights of the Child.

I am delighted that we can move forward with legislation to build a Scotland that values the unique role of local government and in which a respect for human rights anchors our society and the institutions that govern and deliver public services for the people of Scotland—especially the young people of Scotland.

I welcome the assurance from Mr Marra that the Labour Party will work with us on undertaking this work expeditiously, and I have committed to doing exactly that.

It is very interesting that Mr Marra describes the events of the past year or so as “constitutional wrangling”. Parliament unanimously passed a bill that Parliament believed was necessary to protect the rights of children and young people in Scotland. I do not think that Parliament should be cowed from its aspirations by the UK Government. I think that Parliament should be bold in its aspirations and I think that Mr Marra probably agrees that Parliament should not in any way be inhibited from making the boldest possible commitments. I am sure that he and I agree about protecting the rights of children and young people in Scotland.

If Parliament wants to take a maximalist position to give that protection, I do not think that it should be inhibited from doing that, but we are now inhibited because the UK Government has intervened. I have spent a number of months trying to find pragmatic ways of getting the UK Government to accept a fairly basic reality, which is best expressed as follows.

The Education (Scotland) Act 1980 is an act that we are empowered to revise, but under the Supreme Court judgment, we cannot do that through the UNCRC bill. The Supreme Court judgment says that the 1980 act is an act of the Westminster Parliament, and, because of the Westminster sovereignty principle, we cannot put that legislation into this framework. I have simply tried to find a pragmatic way to enable that to happen, because that is what Parliament wanted and legislated for. I have just been trying to protect the interests of Parliament, and it is not part of my duty—[Interruption.]

I am not sure what is going on on the Conservative benches—