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Outcome of Referrals to UK Supreme Court under Section 33 of Scotland Act 1998

Volume 701: debated on Wednesday 20 October 2021

On 6 October 2021, the UK Supreme Court handed down their judgment on the UK Law Officers’ (the Advocate General for Scotland and the Attorney General) referral of two Scottish Government Bills, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (“the UNCRC Bill”) and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (“the ECLSG Bill”).

The UK Supreme Court found that all UNCRC and ECLSG provisions referenced would be outside legislative competence on the basis that they modified section 28(7) of the Scotland Act 1998. It also found that section 6 of the UNCRC Bill, the duty on public authorities to comply with the UNCRC, related to reserved matters and modified the law in relation to reserved matters, and in that context gave some guidance on the limits of section 101(2) of the Scotland Act 1998. The Court found that section 6 could not be interpreted narrowly to bring it within competence. The full judgments are available here:

Reference by the Attorney General and the Advocate General for Scotland - United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: https://www.supremecourt.uk/cases/uksc-2021-0079.html

Reference by the Attorney General and the Advocate General for Scotland - European Charter of Local Self-Government (Incorporation) (Scotland) Bill:

https://www.supremecourt.uk/cases/uksc-2021-0080.html

The UK Law Officers made the referrals under section 33 of the Scotland Act 1998 on 12 April 2021. In advance of that, the Secretary of State for Scotland had written to the Scottish Government to highlight the UK Government concerns and suggest remedies. The UK Supreme Court heard submissions from both Governments on 28 and 29 June 2021. The full written cases for all parties, including UK Law Officers, is available here:

https://www.gov.uk/government/publications/supreme-court-case-no-20210079-and-20210080-written-submission.

It is for the Scottish Government to consider next steps with the Scottish Parliament. As with any legislation the Scottish Government seek to bring forward, the UK Government stand ready to engage constructively with the Scottish Government to ensure relevant issues that may arise are addressed at the earliest possible stage.

The UK Government remain committed to protecting children’s rights, and the legal protection for vulnerable children in England is frequently recognised as being amongst the strongest in the world. The UK Government’s commitment to the UNCRC is reflected in legislation. The Children Act 1989 and Children Act 2004, for example, set out a range of duties to safeguard and promote the welfare of children. Furthermore, in 2014 the Council of Europe reported that local government in the UK in general complies with the obligations under the European Charter of Local Self Government, and the UK Government remain committed to fulfilling the charter obligations.

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