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UNCRC Incorporation: What happens now?

This week, the Deputy First Minister gave a statement to parliament on the UNCRC Incorporation Bill.

What will the legislation do?

The Bill will incorporate the United Nations Convention on the Rights of the Child directly into Scots Law. Essentially, this means that children’s rights in Scotland will be legally protected. For example, laws could be changed to make them compatible with UNCRC and legal action could be taken if children’s rights are breached.

What stage is the legislation at?

The Bill was unanimously passed by MSPs in March 2021. However, it was referred to the Supreme Court since certain parts of the Bill were deemed to be out with the legislative competence of the Scottish Parliament.

In October 2021, the Supreme Court ruled that four provisions of the Bill fell outside of the powers of the Scottish Parliament since they impacted UK bodies and legislation. Unless the devolution settlement is amended, which requires agreement from the UK Government, the Bill cannot pass in its current form.

What happens now?

The Deputy First Minister announced this week that the Bill will be amended and returned to parliament through the reconsideration stage. It is the first time since the parliament was established that the reconsideration protocol has been used.

The changes to the Bill are expected to include:

  • limiting the duties to devolved functions and bodies only
  • ensuring public authorities cannot be found to have acted incompatibly if they were following legislation that could not have been interpreted in a different way
  • removing UK legislation from the scope of courts' strike down powers and incompatibility declarators

The Scottish Government will consult on the proposed changes with COSLA and other key stakeholders, including children and young people, over the next three weeks. A timetable for the reconsideration process will then be announced to enable parliamentary scrutiny before the revised legislation will be voted on again.

Where can I find out more?

You can read more about the Bill here.

Reaction to the Deputy First Minister’s statement is available here.