Westminster’s bid to persuade the Supreme Court to stop the Scottish parliament improving children’s rights is entering its second day.
It is a naked attempt to thwart legislation passed unanimously by MSPs in Holyrood. At its heart is a determination to limit the powers of the Scottish parliament and protect what the Conservative government views as the superiority of Westminster.
If it succeeds the losers will be the children of Scotland and their protection from laws which threaten their human rights.
The issue dates back to March, when the Scottish parliament passed the United Nations Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill. That writes the UN convention into law and would require public authorities to respect children and young people’s rights.
At the time MSPs considered it uncontroversial. They passed it unanimously, with no dissent even from Tory MSPs. But within days the Tory Scottish Secretary of State Alister Jack threatened to take legal action to against Holyrood’s move.
And in April Scottish Conservative leader Douglas Ross backed up Mr Jack’s attack on legislation his own party’s MSPs had voted for. Mr Ross said the legal challenge was over ‘very small, technical legal issues’.
The KidsRights Foundation ranks the UK as 169 out of 182 countries on its respect for the rights of children
He insisted Westminster had no issue with the aims of protecting children’s rights, yet the KidsRights Foundation ranks the UK as 169 out of 182 countries on its respect for the rights of children.
That same organisation praised Scotland as the first devolved nation in the world to legislate to bring the UN Conventions of the Rights of the Child into law.
Westminster signed up to the treaty in 1990 but it has not directly written it into domestic law. The Holyrood legislation would allow children, young people and their representatives go to the courts to enforce their rights, and let courts strike down legislation that is incompatible with the UNCRC.
James Mure, the QC representing the Lord Advocate of Scotland, said: ‘The UNCRC Bill is concerned with furthering children’s rights in Scotland. The true purpose of placing the duty on public authorities is to protect children’s rights and to further the fulfilment of those rights in Scotland.”
The UK government’s legal argument suggests the Holyrood legislation is not competent because it impinges on Westminster’s ability to legislate for Scotland. Its fears are revealed in its written submissions to the Supreme Court which refer to Westminster as ‘the sovereign UK parliament’.
Nicola Sturgeon has described Alister Jack’s legal challenge as politically catastrophic and morally repugnant
UK ministers are clearly rattled by the prospect of tougher children’s rights laws in Scotland taking precedence over weaker laws agreed by Westminster.
First Minister Nicola Sturgeon has described Mr Jack’s legal challenge as ‘politically catastrophic and morally repugnant’.
And the Scottish government has described the move as an ‘orchestrated and sustain assault’ on Holyrood powers.
The European Charter of Local Self-Government (Incorporation) (Scotland) Bill, which MSPs also passed unanimously, has also been referred to the Supreme Court for similar reasons.
Two days have been set aside for the arguments to be presented to a panel of five judges. The UK government presented its case yesterday and it is the Scottish government’s turn today.
The Welsh Government is also involved in the case and will make oral submissions today. Judgment is expected to be made at a later date.