An aftermath of children’s rights

Sunday National, 10th October 2021.

People don’t always appreciate that most of the Scottish statute book was passed by Westminster between 1707 and 1998. Holyrood is slowly catching up – changing and consolidating Scots law, amending and repealing old Westminster Acts – but in many cases, London legislation still underpins vital public services.

Many of the legal foundations of the NHS in Scotland, for example, are found in laws passed by Westminster. The Education (Scotland) Act 1980 still sets out basic rules of law dealing with how primary and secondary education is delivered. Appreciate this, and you can begin to see why this week’s judgment by the Supreme Court on the UN Convention on the Rights of the Child Bill represents a hammer blow for the possibility of incorporating coherent and consistent new rights frameworks into Scots law.

Inspired by the approach taken in the Human Rights Act, the Bill would have allowed Scottish courts to scrutinise any legislation dealing with devolved matters for compatibility with children’s rights, as recognised in international law. It wouldn’t matter if they’d been passed in Edinburgh or London. If the legislation fell within Holyrood’s powers, courts would be empowered to review them for compliance.

At its most basic, the Supreme Court decided on Wednesday that while the Scottish Parliament can give courts the power to mark their own work, Westminster’s “unqualified legislative power” means Holyrood cannot subject any Acts of the UK parliament to children’s rights – even if this Westminster legislation falls smack bang within devolved competence. Essentially: sovereignty roolz.

In response to the Supreme Court judgment, some have suggested that this isn’t really a problem. If MSPs want the law to be subject to children’s rights, all Holyrood has to do is repeal and replace the Westminster legislation. Job done. And that’s true as far as it goes. If the Tories passed a new law in devolved areas which flagrantly violated children’s rights – then certainly, MSPs could just repeal it.

But this quick answer ignores the fact that Scots law is built on layer after layer of old laws, and MSPs have better things to be doing than working through decades of old statutes. Brexit has given them enough to do in that line already.

Presumably looking for reasons to keep his spirits up, this week the Children’s Commissioner Bruce Adamson suggested that the Court’s decision “does not change the commitment renewed by the Scottish Government to take a maximalist approach to the incorporation of the United Nations Convention on the Rights of the Child, as far as devolution allows.” But that final clause is the kicker. Because devolution, as interpreted by Lord Reed and his colleagues, will not allow anything approaching comprehensive incorporation of these – or any other fundamental rights – into Scots law for decades and decades.

The judgment places great piles of the Scottish statute book beyond the reach of these rights, and worse, means that some Acts of Parliament both will and won’t be subject to these rights. It will be a technical nightmare. Take one example. The Criminal Procedure Act 1995 is the bible for Scotland’s criminal lawyers, setting out many of the basic rules governing how our criminal courts work. It was first passed by the Westminster parliament before devolution. Its detail has been written and re-written in the years since, with old clauses being scored through and new provisions added by successive Edinburgh parliaments.

Trying to work out if children’s rights will apply to different sections of this Act gives you a sense of the head-wreck this judgment leaves behind it. Those parts of the 1995 Act which were passed by Westminster won’t be subject to the UNCRC, but the various amendments Holyrood has introduced over the years would be. One half of a sentence might be subject to children’s rights because it was voted on by MSPs, and the other half wouldn’t be because it was passed by MPs and Lords. The Scottish statute book is full of legislation like this. The Supreme Court’s decision means the statute book will be like Swiss cheese – full of holes. If you are a kid or parent who thinks their rights have been violated – well I hope you have a good lawyer with a head for detail. I’m getting stabbing pains to the forehead just thinking about it, and I do this stuff for a living.

This kind of fragmentation is precisely what the Scottish Government were trying to avoid. This is precisely why they framed the Bill the way they did, applying both to Edinburgh and London legislation in devolved areas. This is what they meant when they said they were looking to adopt a “maximalist” approach to the enforceability of children’s rights.

It is hopefully obvious that this approach also benefits from simplicity and comparative clarity. If it had passed the Supreme Court test, a potential litigant wanting to challenge any legislation in court would only have to ask themselves “is this about a devolved matter?” before going to law, whichever parliament passed the law in the first place. What we’re left with is not only minimalist incorporation of children’s rights – it is guaranteed to be confused and confusing, inconsistent, and often arbitrarily so.

Considering all that, I would challenge the Alex Cole-Hamiltons of this life to explain to me – what is so objectionable about the basic idea that, when legislation falls within Holyrood’s legislative competence, it should be interpreted and applied so as to give effect to children’s rights? If Holyrood has the power to modify all the Westminster legislation we’re talking about, what’s so outrageous about asking courts to take rights like this into account in applying the law of the land, whichever parliament passed it?

The Supreme Court clearly set its face against such an approach this week, because doing so would apparently hamper Westminster’s “unqualified legislative power” to make laws for Scotland – but you don’t have to be a scowling Nat looking for a constitutional fight to see this basic approach would have produced a simpler and more consistent approach to the enforceability of children’s rights than the dogs breakfast we’re left with, with some legislation – and some bits of legislation – being subject to those fundamental rights, and others not.

I suppose it is easy to mistake political cynicism for political analysis. For those of a paranoid disposition, it is always easier to see the hidden hand of separatist scheming than confronting the uncongenial reality that this judgment underscores the limits of devolution in a way which should concern politicians who want devolution to work.

There is no good reason why it is only supporters of independence who should be concerned by this – but reactions largely splintered down that familiar political fault line this week, because it is easier to believe this was the SNP on manoeuvres than confront the reality that this judgment is bad news, in particular, for people who believe in a powerful, coherent and consistent devolved sphere of power.

The way the Supreme Court has chosen to interpret the Scotland Act has created a hostile environment for the introduction – not only of children’s rights within the devolved sphere – but also other basic rights. Before the election, the Scottish Government committed to introduce a new Human Rights Bill. While Dominic Raab is worrying away at the Human Rights Act in Westminster, Holyrood is proposing to bring four new international conventions into domestic law, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of Persons with Disabilities.

As a result of the Justices’ narrow construction of Holyrood’s powers and maximalist approach to preserving Westminster’s sovereignty, it is now effectively impossible for Holyrood to create a coherent and reasonably consistent body of fundamental rights law within the devolved sphere.

Considering the children’s rights Bill passed unanimously in the Scottish Parliament – you’d have thought this fact might interest opposition politicians. Considering how many of them regularly take to their feet demanding the Scottish government test the legal limits of devolution on everything from drug consumption rooms to workers’ rights – you might think these MSPs would be more circumspect about painting adverse judgments as evidence of incompetence or bungling rather than Holyrood legitimately pushing the limits of parliament’s powers – and getting pushback in turn.

We know there are people in Scottish politics who will always take a savage relish in devolved institutions being put in their place, and in Edinburgh being reminded who’s boss. But devolution is supposedly a unionist project, a way of answering Scots’ democratic aspirations within the United Kingdom. While they were enjoying watching the Nats being slapped down by the Supreme Court this week, many thinking unionists seem to have entirely forgotten this.

But hey – opportunism knocks.

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