‘Limitations’ to Scottish Parliament education control
MSPs have clashed over a Supreme Court ruling that shows “limitations” over the education issues that the Scottish Parliament ultimately controls.
Deputy first minister John Swinney said this afternoon that the legal ruling reveals the “arbitrary” nature of whether the Scottish or UK parliament has the ultimate say in certain education matters.
However, the Scottish Conservatives have accused SNP ministers of having “shamefully used children’s rights to play nationalist games”.
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Mr Swinney said in Parliament this afternoon: “Strikingly, this 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 this distinction derives from Westminster’s continued claim of sovereignty over all matters, including those devolved to this Parliament.
“But the effect of this distinction is, essentially, arbitrary. For example, the Scottish Parliament can fully protect children’s rights - for example by declarations of incompatibility - if those rights are affected by Acts of this Parliament (like Gaelic education under the Education (Scotland) Act 2016), 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as the Education (Scotland) Act 1980 - even if the subject matter of that legislation is wholly devolved and could be repealed and replaced by the Scottish Parliament.
Children’s rights bill ruling ‘reveals limitations of Scottish Parliament control’
“Our own children, in our own schools, in our own country.”
Commissioner’s message to children, young people and all human rights defenders in Scotland today.
- Children and Young People’s Commissioner Scotland (@CYPCS) October 6, 2021
This is a set-back but don’t lose heart. Scotland will incorporate children’s human rights into domestic law. https://t.co/GxfJGVvFsm
The Supreme Court’s ruling that parts of Scottish legislation aimed at enshrining children’s rights are outside Holyrood’s competence serves to highlight the “weakness” of the devolution settlement, Mr Swinney had earlier said.
The deputy first minister - and former education secretary - spoke out after judges at the UK Supreme Court in London ruled against Scottish ministers on two bills.
The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill sought to enshrine the protections on children’s rights into Scots law, while a similar piece of legislation - also passed unanimously by MSPs - was brought in to incorporate the European Charter of Local Self-Government.
Supreme Court justices insisted that they did not take issue with the Scottish Parliament’s decision to incorporate these sets of standards, but said that the manner in which the bills had sought to do this “breaches the limitations imposed on the legislative competence of the Scottish Parliament by the Scotland Act”.
However, Mr Swinney said the unanimous ruling from the Supreme Court made it “crystal clear” that “the devolution settlement does not give Scotland the powers it needs”.
“While we fully respect the court’s judgment, it lays bare the weakness of, and the limits in, the devolution settlement,” he said.
“The ruling means it is outwith the power of the Scottish Parliament to pass legislation it considers necessary to fully ensure the rights of Scotland’s children are protected.
“The UNCRC Bill was created to deliver a revolution in children’s rights, making sure children and young people are involved in decisions that affect their lives. The Bill was backed unanimously by the Scottish Parliament and celebrated as a landmark by campaigners across the country.”
He added that the European Charter of Local Self-Government Bill - which had been introduced by former Green MSP Andy Wightman - was supported by councils because it “strengthens local government by incorporating the Charter into Scots law”.
On Twitter, first minister Nicola Sturgeon said the Supreme Court ruling will “leave us unable to fully protect children’s rights, even in devolved areas”.
“If our Parliament was independent, no such restriction would apply.”
1/ Implication of today’s judgment on UN Convention on Rights of the Child in a nutshell. The current powers of @ScotParl leave us unable to fully protect children’s rights, even in devolved areas. If our Parliament was independent, no such restriction would apply. https://t.co/n9iKkGLBfI
- Nicola Sturgeon (@NicolaSturgeon) October 6, 2021
But the Scottish Conservatives accused SNP ministers of having “shamefully used children’s rights to play nationalist games”.
Speaking about the legislation on incorporating the UNCRC, constitution spokesperson Donald Cameron said: “There was never any dispute over the substance of the policy, only the legality of parts of the bill.
“The Scottish Conservatives supported this legislation from the outset whilst pointing out the legal problems.
“But the SNP sought to politicise it from the very beginning. They cynically engineered and manipulated the timing of the Bill to facilitate a pre-election stunt where they provoked a grievance with the UK government.”
Mr Cameron added: “The SNP’s disgraceful approach has delayed a bill on children’s rights that every party in the Scottish Parliament supported.
“We hope they will now hastily apologise for doing so and make the necessary changes immediately so that this legislation, that all MSPs support, can be passed.”
This Supreme Court judgement confirms that the SNP shamefully used children’s rights to play nationalist games.
- Scottish Conservatives (@ScotTories) October 6, 2021
Every party supported this legislation from the outset but the SNP’s disgraceful approach has now delayed a Bill on children’s rights.https://t.co/k4Rn57Yty1
Scotland’s children and young people’s commissioner, Bruce Adamson, said: “The Supreme Court has today clarified the limits of the powers of the Scottish Parliament, but this must not limit the commitment made by the Scottish government to take a maximalist approach to the incorporation of children’s rights as far as devolution allows.”
Alison Evison, president of local authorities’ body Cosla, said: “We will now seek to work with the Scottish Parliament and the Scottish government to ensure that all the work done around both bills will not be lost.
“Obviously today’s judgment will require scrutiny and full consideration.”