On 16 March 2021, the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill ("the Bill"). According to the Scottish Government, which introduced the Bill, its aims are to ensure that:

  • children’s rights are respected and protected in the law in Scotland, and,
  • public authorities are legally required to respect and protect children’s rights in all the work that they do.

Challenge to legislative competence

Yesterday, the UK Government indicated its law officers intended to refer the question of the Bill's legislative competence (i.e. of whether the Scottish Parliament is able to legislate as provided for in the Bill) to the UK Supreme Court. The UK Government has suggested that:

  • a section of the Bill may place obligations on UK Government Ministers in reserved areas (i.e. those areas where only the UK Parliament can legislate), and,
  • certain other sections of the Bill would affect the UK Parliament in its power to make laws for Scotland.

The Bill cannot receive Royal Assent prior to the Supreme Court determining the issue of legislative competence. This means that the Bill cannot become law, nor be brought into force. The Supreme Court can be expected to hear arguments regarding the question of legislative competence in the coming months.

Impact of incorporation

The potential effects of incorporation of the UNCRC are wide-ranging. Our colleagues in the Personal and Family team at Brodies previously discussed its potential impact in the area of family law here.