 The next item of business is a statement by John Swinney on the Supreme Court judgment on European Charter of Local Self-Government Incorporation, Scotland Bill, and United Nations Convention on the Rights of the Child Incorporation, Scotland Bill. The Deputy First Minister will take questions at the end of his statement, and so there should be no interventions or interruptions. I call on John Swinney, Deputy First Minister. This morning, the Supreme Court handed down its judgment on the European Charter of Local Self-Government Incorporation, Scotland Bill, and the United Nations Convention on the Rights of the Child Incorporation, Scotland Bill. Although we have had limited time to consider the full implications of that judgment, given the seriousness of those potential implications, I wanted to come to Parliament at the earliest opportunity to update members. I am grateful to you, Presiding Officer, and the Parliamentary Bureau, for making time to have this statement today. In every parliamentary term, there are moments where this Parliament comes together to make a significant statement of intent on who we are and what we collectively stand for, showing a shared sense of purpose on what we seek to achieve as parliamentarians for the people of Scotland. The Scottish Parliament unanimously passing the United Nations Convention on the Rights of the Child Incorporation Bill in March was one such moment. This Parliament set out our collective will to change the culture and practice of how we support children in Scotland. Incorporating the United Nations Convention on the Rights of the Child directly into our domestic law would make us the first administration in the United Kingdom and the first of all legislature anywhere in the world to do so. We felt proud to be the Parliament that would enable this historic step to be taken. We celebrated how this bill would change the lives of children for generations. We imagined how incorporating article 12 would mean that children will have the right to be involved and heard in relation to the decisions that affect their lives. We all look forward to seeing the improvement that incorporating article 23 would deliver in ensuring that children with disabilities have dignity, self-reliance and are able to actively participate in their community. We were certain that we were doing the right thing by incorporating article 3 so that children's best interests are a primary consideration in decision making. On 12 April, however, the United Kingdom Government's law officers referred certain provisions of the bill to the Supreme Court. That reference meant that the bill could not be presented for royal assent and accordingly could not become law until the reference was determined. Today we have that determination. Presiding Officer, while we fully respect the court's judgment and will abide by the ruling, we cannot help but be bitterly disappointed. It makes plain that we are constitutionally prohibited from enacting legislation that this Parliament unanimously decided was necessary to enshrine and fully protect the rights of our children. Before I discuss the implications of that in more detail, I shall make clear that the judgment also affects the local self-government bill. That bill strengthened local government by incorporating the charter into Scots law. Starting as a member's bill, it too was passed unanimously by the Scottish Parliament and supported by the Scottish Government and local government through the Convention of Scottish Local Authorities. The bill was intended to develop and to further strengthen the relationship between the Scottish Government and local government in Scotland, and to ensure that priorities and policies are developed and delivered in partnership. The judgment will make those aims more difficult to achieve. The Scottish Government will now liaise closely with Mark Ruskell, the designated member in charge, who has taken this role from the former member of the Scottish Parliament, Andy Wightman, to work out how best the potential next steps can be taken in addressing the issues from the ruling. The UNCRC bill was a landmark moment in the Scottish Parliament's history. It was modelled partly on two pieces of legislation central to our constitution, the Human Rights Act 1998 and the Scotland Act 1998. The UNCRC bill sought to incorporate international human rights law into our domestic law and adopt a judicial route to a remedy. With the unanimous support of the Parliament and the overwhelming support of stakeholders, we sought to make those internationally recognised treaty articles directly justiciable in Scottish courts, with powers for our independent judiciary to either strike down incompatible legislation in devolved areas or, if a future piece of legislation declare it incompatible. That was a new approach for legislation in this Parliament, so the UNCRC bill took us into new territory, including the use of the powers of the Parliament and devolved competence. After wide public consultation and full parliamentary scrutiny, we all entered that territory clear that this was the approach that we wanted to take. The full implications of the judgment need to be considered carefully. However, our initial view is that the judgment does not prevent the Scottish Parliament from doing something that we would consider routine practice. It has not narrowed our ability to amend or repeal legislation in devolved areas, either in an act of our Parliament or the United Kingdom Parliament. It has not changed our competence to incorporate international treaties, nor has it reduced our ability to rely on our judiciary to enforce our statute book. The judgment does, however, expose the devolution settlement as even more limited than we all, indeed the Scottish Parliament itself, had understood. It sets out new constraints on the ability of our democratically elected Scottish Parliament to legislate to protect children's rights in the way it determines, after open and careful consideration, appropriate roles for the judiciary and this Parliament in that protection. Strikingly, the judgment has decided that there are limitations to devolve 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. However, the effect of the distinction is essentially arbitrary. For example, the Scottish Parliament can fully protect children's rights by declarations of incompatibility if those rights are affected by acts of this Parliament, such as 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, our own children, in our own schools, in our own country, but Westminster legislation, so we cannot apply the UNCRC to that legislation. That is the ludicrous constitutional position that Scotland finds itself in. The Supreme Court has therefore illustrated the incoherence of the powers of the Scottish Parliament within the current devolved settlement and under the current UK constitutional arrangements tied to the continued claim of unlimited sovereignty by the Parliament at Westminster. There is no doubt that the implications of this judgment are significant from a children's rights perspective and in terms of this Government and indeed this Parliament's aspiration for the country that we want our children to grow up in. The Scottish Government remains absolutely committed to the incorporation of the UNCRC into Scots law to the maximum extent possible. We want to ensure that we pursue that policy in a way that can be enacted and therefore made real in practice. Members may wish to recall what children told us about how incorporation would change things for the better. In the evidence that the children's Parliament gave in the consultation on the bill last year, a child said, I think that you should make children's rights law because it will keep a lot more children safe. Bruce Adamson, the Children and Young People's Commissioner for Scotland called the incorporation of the UNCRC into Scots law the most important thing that we can do to protect and uphold the rights of children and young people. The Supreme Court has criticised the maximalist approach that the Scottish Government took as deliberately exceeding the limitations of competence. It is normal for the Scottish Government to invite the Scottish Parliament to make the maximum use of its devolved powers and responsibilities. Indeed, we are frequently encouraged to do so and on this issue we are specifically encouraged to take this approach by many voices within the Scottish Parliament. It was an approach widely supported by many stakeholders and by the children of Scotland who wanted the Parliament to protect them to the maximum extent possible. The law in the area in question had not previously been tested. The Scottish Government took a reasonable view on these difficult questions, a view that the Presiding Officer of the time judged to be within legislative competence and which was unanimously supported by the Parliament. The Scottish Government notes that the judgment underscores that domestic legal effect to international human rights treaties can only be achieved through incorporation and that, while it is within the Scottish Parliament's competence to incorporate international treaties and protect the rights of Scotland's citizens, the nature of our current devolution settlement and the UK's constitutional arrangements impose limitations on the extent and the manner in which we can do that. It is regrettable that this bill has been delayed and will not now become law in the form which our Parliament agreed. We remain committed to the incorporation of the UNCRC to the maximum extent possible as soon as practicable. Although the judgment means that the bill cannot receive royal assent in its current form, the majority of work in relation to implementation of the UNCRC can and is continuing. We will now reflect on how to add to those existing protections through incorporation. The UNCRC is the most widely ratified international treaty, but very few countries have committed to take the journey that Scotland has so clearly wants to take. To everyone who has walked with us this far on that journey, encouraging us along the way, I want to reassure you that we will reach our destination. The Government remains committed to the incorporation of the UNCRC to the maximum extent possible. There is no doubt that we may not yet wholly comprehend all the implications from this judgment. It will require careful consideration and I will be happy to keep Parliament updated. However, one thing is already crystal clear. Some have said that the Scottish Parliament is the most powerful devolved legislature in the world. On the day that the Supreme Court has confirmed boundaries on our ability to protect our children, I regret to say that it certainly does not feel anything like that. The Deputy First Minister will now take questions on the issues raised in his statement. I intend to allow around 20 minutes for questions after which we will move on to the next item of business. I would be grateful if members who wish to ask a question were to press their request to speak buttons now. I call Donald Cameron. I thank the cabinet secretary for prior sight of this statement and refer to my register of interest as a member of the Faculty of Advocates. We welcome this legal judgment because this was always a legal question. It was never about the substance of the policy. There was unanimous support from all parties in this chamber for both bills, but we warned that parts of the bill would be legally problematic. To their shame, the SNP did not listen and instead politicised this from the very beginning. In this very chamber, at stage 3 of the bill, the Deputy First Minister characterised the UK Government's approach as menacing. In an election debate, Nicola Sturgeon used it to attack the UK Government and described the legal challenge on Twitter as morally repugnant. That political posturing has been comprehensively demolished by the definitive judgment of the Supreme Court today. The judgment by Lord Reid, one of Scotland's most eminent judges, is unrelenting in its criticism of the Scottish Government approach. At paragraph 60, noting, the legislation has been drafted in terms which deliberately exceed the legislative competence of the Scottish Parliament, deliberately exceed. Those are caustic words. The court was in no doubt intentional. To confirm that this was always about the politics and not the law, what is the first response by the SNP today to their comprehensive court defeat, as ever they make it about nationalism and their obsession with independence? Can I ask the Deputy First Minister this? Given that the SNP's disgraceful approach has delayed the bill on children's rights that every party in the Scottish Parliament supported, will he apologise for creating this unnecessary delay, and will his Government make the necessary changes so that this legislation can be passed immediately? The delay to the implementation of the bill has been created by the reference to the Supreme Court by the United Kingdom Government's law officers. That is the only reason why that is the case. On the point that Mr Cameron raises about the scope of the bill, I would simply remind him that at stage 3 of the passage of the bill, his own colleague Alexander Stewart said that the direct incorporation method adopted by the bill will ensure a maximalist approach that is very much to be welcomed. It is the maximalist approach that has caused Mr Cameron such concern in his remarks today. I will say to him that the Government is absolutely committed to implementing this legislation at the earliest possible opportunity by addressing the remedies that are necessary. However, I will make absolutely no apology for whatsoever is being determined to do as much as I possibly can within statute to protect the interests and the rights of children and young people in our country. For the United Kingdom's law officers, to take us to the Supreme Court to stop us doing the maximum that we want to do is an absolute disgrace. Scottish Labour stands ready to quickly get the bill back into Parliament and make sure that we can pass a competent act protecting young people's rights. The Government's record on rights shows why it is needed. The Deputy First Minister says in his statement that the decision is essentially arbitrary. For example, the Scottish Parliament can fully protect children's rights, but too often this Government does not. In recent days, the SQA, directly under the remit of this Government and until recently the Deputy First Minister, was made subject to the statutory powers of the Quality and Human Rights Commission. That extraordinary move is a result of breaches relating to 112 policies, many of which relate directly to awards of qualification. There are other areas where the Scottish Government has refused to act to meet either the standards or the spirit of the UNCRC. Real and tangible action is needed now and it is possible now. Will the cabinet secretary commit to publishing an analysis of every single policy area that the Government is not yet meeting the criteria of the UNCRC alongside an urgent action plan of how that will be achieved? Much of the material that Mr Marra talks about was rehearsed during the passage of the bill. I appreciate that he was not a member of the Parliament at that time, but his colleagues always supported the passage of the bill at all stages in its proceedings. The very argument that he advances about the necessity to protect the rights of children is why the Government brought forward the United Nations Convention on the Rights of the Child Incorporation Bill to make sure that that was the statutory position within Scotland and that there was a justiciable remedy should the Government not be or public bodies not be fulfilling their commitments in that respect. What worries me about the situation that we find ourselves in is that there are very significant areas of statute where that remedy will not be available to be exercised. I cited in my remarks the Education Scotland Act 1980. The Children's Scotland Act 1995 is another example. I could give a whole host of examples on the record in the stage 3 proceedings of this bill, where, as a consequence of the approach that has now been taken, there will be a limitation on our ability to do exactly what Mr Marra wants us to do. I want there to be a justiciable remedy available for children and young people in our society. I want it to go across the whole statute book. I want people to be able to challenge where they believe their rights have not been honoured, but the ruling today unfortunately constrains the ability of that to be exercised because of the objections raised by the United Kingdom Government's law officers, and I profoundly regret the stance that they have taken. I share the deep disappointment in today's decision expressed by the Deputy First Minister, but it is perhaps more surprising and more disappointing that it is the UK Government their decision to challenge this Parliament's unanimous decision in this way, given that a working system for intersecting legislation has long been in place in relation to EU law. We now appear to be in a position where the UK Government is not interested in co-operation for the common good to allow us to protect the rights of our children, only in defending insular borders. As part of the co-operation agreement between the Scottish Greens and the Scottish Government, we are going to bring forward world-leading human rights legislation that will enshrine the right to a healthy environment and dignity and rights for older people and LGBTI people. Can the Deputy First Minister advise what the implication of today's decision will be for that, and how we can ensure that neither legal technicalities nor the UK Government's insularity prevent us from enshrining human rights into Scots law? Maggie Chapman raises a number of very significant points. What she correctly does, although there seems to be behind me a little bit of walking away from those commitments, is to reinforce what Parliament had in its mind when it passed the legislation. What Parliament had in its mind was to maximise the protection of rights that could be available to children and young people within the powers of this Parliament. We endeavored, as a Parliament, and agreed unanimously the mechanisms to enable that to be the case, and they have now been constrained by the objections raised at the Supreme Court by the United Kingdom Government. That is the factual reality of the situation that we now face. We must consider that ruling, and we must reflect on it in relation to the legislation to which Maggie Chapman refers in relation to the human rights legislation that will come to Parliament in due course. I give her the assurance that my ministerial colleagues will engage constructively with Parliament and with the wider Scotland to ensure that we have an open discussion about the application of those issues in the formulation of that legislation. Months have been wasted, and it is children that have lost out. The Scottish Government knew that there was a problem, but it preferred to wait for a constitutional clash. It is depressingly predictable. It has not answered this yet. Why did the Government wait? The Government did not pass the legislation on its own. Parliament passed the legislation in its entirety. Let me go through the absurdity of the question that has just been put to me. If I unilaterally decided not to follow the unanimous legislative decision of the Scottish Parliament, the first person on his feet to complain about it would be Willie Rennie. I know that there are lots and lots of loud people shouting behind me, but what I am trying to say to Parliament is that Parliament knew what it was passing. It wanted to maximise the protection for the rights of children. Mr Rennie was one of them, so were his other colleagues, all of mine, all the Conservatives, all the Labour Party, all the Greens. Everybody wanted this to be in place, and the people that objected were the United Kingdom Government's law officers. That is the factual reality. I regret that enormously, because nothing would have pleased me more than to get the legislation on the statute book and get the type of protection in place that Mr Marra has raised with me in the course of question time today. Nothing would have made me happier, but what has thwarted that is the actions of the United Kingdom's law officers. As you would expect, many members wish to ask a question, so I would be grateful if questions and responses could be short and succinct. I call Rona Mackay to be followed by Miles Briggs. On the day that the UK Government cuts £20 per week from the poorest in our society, pushing thousands of children into poverty, does the Deputy First Minister agree with me that the Supreme Court ruling today has shown that devolution simply does not enable this Parliament to protect Scotland, in particular our children from Westminster control? There are clear limitations placed on the ability of the Parliament to legislate to the maximum extent it wishes to do so to protect the rights of children and young people in Scotland. We will do as much as we can to remedy that situation in the spirit of the unanimous view of Parliament, but certainly the type of actions that Rona Mackay has cited by the United Kingdom Government certainly do not help to strengthen the rights and the position of children and young people in Scotland. Miles Briggs to be followed by Michelle Thomson. I am sure that the Deputy First Minister would recognise that the UNCRC was first ratified by the UK Conservative Government 30 years ago in 1991, but the Supreme Court ruling points to a number of significant questions around the legal advice ministers and Parliament as a whole have been provided during the passage of these bills. That is an issue that I think the Parliament has to also reflect on, given what the Deputy First Minister has said from the former Presiding Officer's advice to all members of this Parliament. Can I therefore ask the Deputy First Minister if he will agree to publish the legal advice ministers have received throughout this progress of the bill as well? Mr Briggs knows, because we rehearsed a lot of these arguments in the last parliamentary session, that the Government does not publish its legal advice. It is a well-established... We know that Mr Kerr is new to this institution, but he will become accustomed to the fact that Governments do not publish their legal advice. As for the issues in connection with Parliament, they are not issues for me, and it is not appropriate for me to comment in any respect on their contents. As a much-respected centre for constitutional change at the University of Edinburgh is made abundantly clear, the referral of the bills to the Supreme Court by UK law officers was as much a political as a legal decision. They were under no duty to refer their decision was political. The effect of the ruling on the UNCRC bill is to deny a range of rights to Scottish children. Although the Scottish Government may now reluctantly seek to amend the legislation to make it compliant, can the cabinet secretary confirm that every effort will be made to ensure that the children of Scotland do not lose out due to the political actions of the UK Government? Let me use an example to illustrate the position that Michelle Thomson puts to me to substantiate the argument that she has made. The Education Scotland Act, the contents of that act, the 1980 act, are entirely devolved. The Parliament can amend that act in its entirety, but if we wish to extend to the citizens of Scotland the right to judicially challenge that bill in terms of the UNCRC and the point that I was advancing to Mr Marra, that is no longer available to them because the United Kingdom law officers have taken the action that they have taken. It is an area of policy entirely within the competence of this Parliament, but we cannot extend the rights that Parliament wants to extend to that bill because of the actions of the UK law officers. I am rather with Michelle Thomson on the question that this was not legal but a political intervention. I call Martin Whitfield. I can hardly hear myself speak. I would be grateful if we could have cam in the chamber. I call Martin Whitfield to be followed by Eleanor Whitham. I am grateful. Paragraph 32 of the judgment states that no one disputes the right of the Scottish Parliament to regard the UNCRC as an important convention and to give effect to it. You would have the support of the members on this side of the house. Could you confirm that we can rectify that by April next year? I will do it as quick as I can. I will say to Mr Whitfield that we will have to consider the judgment, we will have to consider other aspects of the legislative programme and we will come back to Parliament on those terms. I am certainly very keen to work with members of Parliament as I was throughout the UNCRC bill because it ended up being passed unanimously. Not all the legislation that I bring to this institution passes unanimously, so this did pass unanimously, so I am keen to work with other parties to make sure that we can rectify those issues. As for the timescale, Mr Whitfield will have to give me some time to consider what is possible. I call Eleanor Whitham to be followed by Megan Gallacher. Writing last year to the local government committee of which I am now deputy convener, the president of COSLA celebrated incorporation of the European Charter of Local Self-Government into Scots law and noted that she sensed a high degree of support for the bill, an observation that proved correct when this Parliament backed the bill unanimously. Does the cabinet secretary agree with me that the UK Government's attack on this bill is an attack on the cross-party judgment of both COSLA and the Scottish Parliament and on the system of devolved politics in Scotland itself? Obviously, the local governance bill was not initiated as a government bill, but we supported it and Parliament adopted it unanimously. I recognise it to be a constructive and helpful piece of legislation to cement the position of local government within Scottish democracy and society. Whilst I regret the fact that we cannot proceed with the legislation at this stage, I give Eleanor Whitham and the local government community the assurance that the Government will do all that it can to work within the spirit of the legislation as far as we are able to do so without the legislative power in place. Throughout his statement, the Deputy First Minister repeatedly asserts that the UK Government is making a claim of unlimited sovereignty. Will the Deputy First Minister accept that, rather than striking up a collaborative tone and pledging to work on behalf of Scotland's children, his statement this afternoon does nothing but stir up yet more constitutional grievance that even the Supreme Court accepts as deliberate? The sort of straightforward way through this would have been for our bill to get royal assent without objections from the UK law officers. It was supported by every single member in this Parliament. What on earth are the Conservatives objecting to the passage of legislation that they themselves supported? Do they not understand how absolutely ridiculous their line of argument is today? This Parliament made its choices about how it wanted to deliver the maximum protection for children and young people in our country. The people who have got in the road of that, the people who have interrupted it, are the UK Government's law officers. Is it any wonder that some of us are disappointed by the conclusions of this process? I was a member of the Equalities and Human Rights Committee when the incorporation of UNCRC was scrutinised and passed when the bill had overwhelming support from Civic Scotland. What can the Deputy First Minister give children's organisations and the many children that they support that the UNCRC will inform everything that we do here in Scotland in the future, despite the UK Government's needless petition decision to flex their muscles and to take us to court? Does this ruling today not make it clear that the current devolution settlement needs urgent attention if children's rights and Parliament's will are at stake? Just not long before I came into the chamber today, I received a letter from the Scottish Alliance for Children's Rights, which the letter is signed by countless organisations that are actively working in the field of children's rights and interests. They make the appeal to me, which I have already confirmed in my statement, but I take the opportunity of Gillian Martin's question to repeat the point, that the Government will do everything that we can to work within the spirit of the legislation that Parliament has passed and which is in no way constrained by the reference on limited elements of the provision to make sure that we advance the cause of children's rights and that we operate in a fashion consistent with the United Nations Convention on the Rights of the Child whilst we take the necessary legislative remedies to address the situation that we have to do. We cannot lose sight of the people that this is for, children all across Scotland. I am pleased to hear that Deputy First Minister say today that he and his Government will seek to realise the rights of children to maximum effect. I look forward to their support for my young disabled persons transition bill, the immediate doubling of the Scottish child payment and end to the use of mosquito devices and an amendment to the age of criminal responsibility, but on the UNCRC specifically, I believe that it is incumbent on all of us to do all that we can right now to fix this situation and realise the human rights of children in Scotland. In that vein, when this bill was initially brought before Parliament, it included a grace period of six months after the bill received royal assent before it would have fully of come into force. Had the court judgment not taken place, the bill should have been implemented in November. I believe that the Government should reintroduce a reviewed bill straight away. Therefore, does the Government agree that enough preparation time for incorporation has been given already? Will it commit to ensuring that any review of the bill includes provision for it to be implemented immediately? That is a very legitimate point to be considered as part of the sequence of events that we take forward. Obviously, there has been awareness of the limited range of issues that were the subject of challenge in the bill, so organisations will have the opportunity to consider the basis of the legislation that Parliament has taken forward. The point that Pam Duncan Glancy makes is a material point to consider within the timetable for scrutiny and implementation of any future legislation. Paragraph 33 of the judgment highlights the fact that the Welsh Government did not face a legal challenge on provision of the Welsh UNCRC Bill in 2011, making it even more stark that this was a choice made by the UK Government rather than a necessity. Would the cabinet secretary agree therefore that this only goes to demonstrate that the Tory Government at Westminster cares more about exercising unfettered power over Scotland than they do about the rights of children? I have a lot of sympathy with that point. I come back to the example that I have repeatedly cited. The Parliament has legislative competence to amend the Education Scotland Act, but the UK Government has objected to extending the right of independent judicial scrutiny of whether issues in the Education Scotland Act 1980 are compatible with the UNCRC. That, to me, is a vivid example of how absurd the objection has been from the United Kingdom Government, and it illustrates the type of willingness that Audre Nicolaus talked about to try to constrain the scope and the actions of the Scottish Parliament. Today might not be a good day for ministers, but it is certainly not a good day for our Parliament and how we make legislation. The supreme ruling calls into question the legal advice MSPs have received, and perhaps more the legal advice SNP ministers have been given and have said they hold when members are making legislation. In light of the ruling that we have received today, what review or consideration will you and the Parliament be making into what needs to change? I thank Mr Briggs for his point of order. The rule of the presiding officer is to indicate a view and opinion on legislative competence at the point when a bill is introduced, and the intention of that statement is to inform the Parliament in any consideration of its bill. The presiding officer has no further rule in relation to legislative competence during the passage of any bill, and its view on the matter does not prevent any bill being submitted for royal assent. In all instances, the UK Supreme Court is the ultimate authority in determining legislative competence. Their ruling on those matters clarifies the legal position and will inform future consideration of legislative competence. I make reference to the last question that was pointed to the Deputy First Minister. My apologies to Audrey Nicola. I haven't been able to speak to her about it, but paragraph 33 of the judgment states that the suggestion seemed to be that the fact that the legislative competence of that provision had not been challenged had some bearing on the present proceedings. However, that provision is much more limited in scope than the Scottish UNCRC bill. It imposes a duty on the Welsh ministers when exercising any of their functions to have due regard to the requirements of the UNCRC and its first two protocols. I just wish to put that on the record as a clarification in relation to the last question. Thank you, Mr Whitfield. It is not a point of order, but your comments are now on the records. There will be a short suspension before we move to the next item of business.