Chamber and committees

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.

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.

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.

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.

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 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?

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.

I am grateful to Mr Fraser for his comments and his willingness to engage on the detail of the strategy. As he knows from the discussions that we have had in the cross-party group on Covid, I am open to discussion about the priorities that we should pursue.

Employment is a significant issue. There are acute labour market shortages in the economy and, at this stage, comparatively low levels of unemployment. However, substantial numbers of individuals have just come off furlough, and we await the impact of that on the labour market.

The Government already has in place a range of interventions, including the national transition training fund, the north-east skills fund, individual training accounts, the flexible workforce development fund and the young persons guarantee. The chancellor’s announcement the other day apparently indicates, at a high level, £41 million of consequential funding for the Scottish Government. As Mr Fraser would expect, we have to interrogate the detail of that, and look at it in the round of financial announcements that are made by the UK Government to make sure that it is actually £41 million of new money, because sometimes it is not new money.

We will look at that carefully, and announcements will be made by my colleagues as we look to deploy the resources to assist individuals and enable them to have good high-quality employment in the Scottish economy.

We intend to work closely with our local authority partners to increase take-up. Funded ELC is a significant benefit for children and young people, so we have to ensure that the youngest and most vulnerable children in society are gaining access to what is being provided. It can also—this links to my answer to Daniel Johnson—help families to secure access to the employment market, which then strengthens their position into the bargain.

I assure Beatrice Wishart that we will work closely with local authorities to ensure that uptake is higher. I envisage that issue being taken up by the programme board that we will take forward, in partnership with local government, to ensure that we fulfil those commitments.

The issues of regional diversity are central to the strategy. Yesterday, several ministers, including me, were involved in a meeting of the south of Scotland convention, which brings together several south of Scotland bodies to consider areas of shared activity. We had a healthy discussion about the regional economic strategy that has been formulated by that partnership in the south of Scotland, which is very community and local authority led. The Government is actively engaged in the process.

After the recess, I will chair the convention of the Highlands and Islands, which is a further opportunity for that regional perspective to be considered. I look forward to continuing those discussions.

The Government makes funding decisions and announcements at different times, and we have set out commitments around the north-east of Scotland training fund and the transition funds for the north-east and Moray in relation to the oil and gas sector. The funding decisions will be taken to reflect the decision making that has taken place at a local level—and to complement some of the other financial arrangements around growth deals that distribute resources around different parts of the countries.