Constitutional Changes in Scotland – I: Incorporation of International Treaties, Devolution and Effective Accountability

Scotland is on the precipice of significant subnational constitutional change through a programme of incorporation of international treaties. On 16 March 2021, the Scottish Parliament unanimously enacted the UNCRC (Incorporation) (Scotland) Bill, incorporating the rights of the child into domestic devolved law. In addition, on 12 March 2021 Scotland’s National Taskforce for Human Rights Leadership published a report recommending incorporation of ICESCR, UNCRPD, CEDAW and UNCERD in a multi-treaty Bill, together with additional rights on the environment, equality, older persons and access to justice.

This blog is the first of a two-part series on Scotland’s incorporation journey. Part 1 sets out the devolved landscape and discusses incorporation of the UN Convention on the Rights of the Child and Part 2 examines the National Taskforce’s Report on a multi-treaty Bill incorporating four further UN treaties into domestic law.

How does incorporation work within the confines of devolution?

Incorporation of international treaties in a devolved Scotland is subject to a constitutional settlement that traverses the reserved v devolved divide creating complex legal questions around devolved competence at the subnational level.

The implementation and observance of international human rights forms part of the Scottish Parliament’s devolved powers. This is not without complications. Housing, health and education, for example, are devolved matters (falling within the remit of the devolved legislature and executive). Employment law, immigration and foreign affairs on the other hand, are reserved solely to the UK Parliament. Social security is partially devolved and equality law is a grey area. The incorporation of CEDAW, for example, will rely on an interpretation that the reserved matter of ‘equal opportunities’ should be treated as a floor rather than a ceiling, meaning that advancing substantive intersectional equality is within devolved competence.

The Scottish Government’s response to these complications has thus far been to redact elements of the treaty in the incorporating statute to avoid a challenge to the legal competency of the legislation. Whilst this facilitates what is termed a ‘maximalist’ approach to incorporation within devolved competence, it also means that gaps will emerge in relation to those rights beyond the reach of devolution. For those unfamiliar with the UK framework, this does not bode well for rights within reserved areas as the UK Government retreats from existing accountability mechanisms. Following the Scottish Parliament’s enactment of the UNCRC Bill, the UK Government has indicated its intention to challenge the legal competency of certain provisions meaning Royal Assent could be delayed whilst the Bill is referred to the Supreme Court.

UNCRC Incorporation

Incorporation of the UNCRC into domestic law follows a powerful and effective civil society process that grew momentum for UNCRC incorporation without delay (see in particular the work of the Children and Young Person’s Commissioner and Together, an alliance of children’s rights organisations). The model of incorporation adopted in the UNCRC (Incorporation) (Scotland) Bill is based on a mix of other existing domestic incorporation statutes, namely the Scotland Act 1998 and the Human Rights Act 1998.

In terms of accountability mechanisms, the Bill includes a duty on public authorities to not act incompatibly with UNCRC (s6 mirrors s29 SA/ s6 HRA); a duty to interpret other legislation to comply with UNCRC (s19 mirrors s 3 HRA/ s 101 SA); a power to strike down retrospective incompatible devolved legislation (s20 mirrors s29SA); and a power to make a declaration of incompatibly for subsequent devolved legislation or incompatible Westminster legislation (s21 mirrors s4 HRA).

Whilst these are hugely welcome developments in terms of devolved incorporation, the passing of the UNCRC Bill highlighted some key areas of concern in terms of effective accountability. First, the privatisation of public services remains a gap that may not necessarily have been addressed by amendments to the Bill (ss.6(3A-3B)). The objective is to ensure public services outsourced to private companies would be caught by the definition of a public authority performing a public function. However, this follows a highly contested decision of the highest civil court in Scotland precluding the private provision of housing services to asylum seekers from the definition of “public function” under s6 HRA (the private motivation of the company to make profit took precedence). The amendments in the Bill do not necessarily close the private ‘motivation’ gap. Second, an amendment to the Bill sought to ensure that remedies deployed by courts meet the threshold of “effective, just and appropriate remedies” (s8(1)). This may bridge the gap in ensuring remedies meet the threshold of an effective remedy in international law, however, it remains to be seen whether the court will take up the mantle of interpreting this according to international human rights standards, something section 4 of the Bill enables but does not compel. As the UN Committee on the Rights of the Child stipulates, ‘for rights to have meaning, effective remedies must be available to redress violations’. The Bill sets Scotland on the right course, but much further scrutiny of operationalisation is required.